What Is Necessary To Change A Custody And Access Agreement
Generally, once an order or an agreement is made regarding custody or access, there has to be a material change in circumstances such that would be in a child’s best interest to change the custody or access terms that are in place. Usually this is a difficult task for the parent seeking the change. They first have the burden of showing that there has been not just a small change but that the change is a material change. It has to be something that is significant and it has to have occurred since the making of the last order or agreement. Then, even if they can show this, and even if they can show that there is some benefit to what they are proposing, they have to bear in mind that change is not easy on the child and judges are thus reluctant to interfere with the status quo.
The party requesting the change must show that the change they want is better than the current situation for the child. Examples where this might occur could include when the parent with whom the child resides primarily has an accident such that their ability to care for the child is compromised; they might not be able to meet that child’s needs and so it maybe in the child’s best interest for there to be a change in either the custody and/or the access arrangement. Another example could be that the parent with whom the child resides primarily may be persistently not acting in the child’s best interest by, for example, reducing the other parent’s access or even refusing access altogether. In that situation they may be damaging the relationship with the access parent and that may call for a change in the custody and access terms. A child’s relationship with the parent with whom they reside primarily may have deteriorated or perhaps there were incidences of the primary residence parent putting the child in danger or even abusing the child. Those could all be situations where a change is in order.
Parties can agree upon a change to custody and access between themselves. If what they have in place is a Separation Agreement they can change the terms of the contract with regard to custody and access. If custody and access is governed by a court order, they may want to file a Consent with the court and change the order. In either situation, there should be an official record showing the change of terms in whatever document or agreement is currently governing. It is always a good idea to make the paperwork consistent with the custody and access that is actually occurring; otherwise, there can be problems down the road.
If you, or someone you care about, is dealing with family law issues in York Region, Durham Region or Toronto, contact Feldstein Family Law Group for a consultation.
This article is taken from a January 22, 2010 interview with Michael Wilson, Family Lawyer with Feldstein Family Law Group, a Toronto Ontario Family Law Firm. Note that laws vary from province to province. Please consult with a lawyer in your own area to be sure of the laws and specific issues in your own jurisdiction.