My Kids Should Be Living With Me Half the Time, How Do I Modify the Custody Arrangement?

Like many parents you likely feel strongly about the fact that your children should be spending more time with you. However, you likely have a decree or court order in place that states your spouse is the primary custodian for the children and you have rights to visitation. So the question is, what are your options to address this?

First, it is important to understand the distinction between modification of the custody arrangement and modification of the visitation arrangement. The custody arrangement identifies who is the primary custodian of the children and thus informs the visitation arrangement which in turn outlines the amount of visitation that the non-custodial parent is entitled to.

The first step should always be an attempt to have an informal discussion with your former spouse to see if they are agreeable to providing you with additional visitation. However, it is often the case that your former spouse will insist on following the existing decree or court order (to the extent you can work out an informal agreement with your former spouse with our resorting to the courts that would be ideal). If you spouse continues to refuse additional visitation and you feel like your only option is to ask the court for relief, you need to know what your chances are.

Your ability to successfully petition the court for a modification will depend largely on what you are asking the court for. If you are asking for a modification of the custody arrangement (i.e. you should now be the custodial parent or it should be a shared physical care arrangement) you will face a much more difficult challenge than if you are just requesting a modification in the visitation arrangement (i.e. you want to see your kids an additional day a week and my former spouse will still maintain primary custody). If you are seeking a modification of the custody arrangement you will need to be able to show that a substantial change in circumstances has occurred since the original decree or court order was entered and that the parent requesting the modification can provide superior care for the children. Generally speaking, the factors the court considers when making the determination are as follows:

  1. Best interests of the children
  2. Child’s preference (although this will carry less weight in a modification as opposed to the original custody proceeding)
  3. Siblings should be kept together
  4. The custodial parent’s conduct (i.e. are they supportive of the other parents relationship with the children)
  5. Stability as it relates to the child

To request a modification to the visitation arrangement a much lower bar must be cleared. More specifically, a parent seeking to modify visitation must only establish that there has been a material change in circumstances since the decree and that the requested change in visitation is in the best interests of the children. This is a much lower hurdle to clear than the substantial change in circumstances and ability to provide superior care, as discussed above.

As with any family law matter, the specific facts of a given situation are critically important in determining the best course of action going forward. As such, it is important to speak with an experienced family law attorney to fully evaluate your options.

For more information about family law, divorce, and modifying your custody arrangement, contact the Goosmann Law Firm at or call 712-226-4000.

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