Child custody modifications can be difficult to obtain, but are necessary in certain circumstances.

Divorce can be a difficult emotionally draining process. Two lives are separated and untangled in order to make a fresh start for each ex-spouse. This entails making some very important decisions about finances, property, assets and most importantly, custody of the child or children. While all efforts are made to ensure the final custody order is in the child’s best interests, circumstances may change that make it necessary for a parent to seek modification of that order.

Custody modifications and timing

After the final judgment order has been entered, legal custody and physical placement can be modified. However, modifications can be difficult to achieve and the standard that must be met differs depending on how much time has passed since the final order was entered with the court. As a general rule, under Wisconsin Statue 767.451, the court may not modify legal custody or physical placement if it has been less than two years. The exception is if the parent seeking the modification can show the court that under the current order, the conditions the child is living in are emotionally or physically abusive and not in the best interests of the child. The purpose of waiting two years is intended to give the parents and the child time to adjust to their new living situation.

Alternatively, the standard is more lenient under the same statue if the motion for modification occurs at least two years after the final divorce order was entered. It is important to note that when the court is considering a modification after two years there is a presumption that the current custody order is in the best interests of the child; this includes physical placement (where the child resides) and legal custody (decision making rights). Therefore, to make a change, the parent bringing the motion must show that the change is in the child’s best interests and there has been a substantial change in circumstances that negatively affects legal custody or physical placement.

Reasons to make a change

There are many reasons that a parent may feel it’s necessary to modify his or her child’s custody agreement. However, not all of them will reach the level of a ” substantial change in circumstances” to meet the court’s modification standards. Here are some reasons that may show that a change is necessary:

• The child has suffered physical or sexual abuse at the hands of the custodial parent or while under the custodial parent’s care.
• The child has suffered neglect by the custodial parent.
• The child suffers from declining health, social or psychological problems or is at risk of danger due to negligence or actions of the custodial parent.
• The child’s personality has changed dramatically, or there are other warning signs present such as no interest in activities he or she previously enjoyed or a drop in grades in school.
• The custodial parent has been imprisoned.

There are some other reasons that may have an impact on your family, but would not be considered a “substantial change in circumstances.” Some examples may include improved circumstances for the non-custodial parent, failure to pay child support or the custodial parent not allowing the non-custodial parent to visit the child. There may be other ways to enforce the original custody agreement, but modification may not be one of them.

If you feel that your child is at risk or suffering due to your current custody agreement, it is important to consult with an attorney. At Magner, Hueneke & Borda, LLP, we are experienced in all matters that may affect your family. We can help you determine the best course of action based on the circumstances and help you through the process to protect your child.