One the most difficult issues in any Indiana divorce is which spouse will have custody of the minor children. Many Indiana residents facing a divorce assume that the court will issue an order that resolves this question once and for all. But a sudden life change – change of employment, illness, injury or some other unforeseen circumstance – will make the original order for child support unsuitable for one or both parents or for the children. Then what? The answer is a motion to the court for modification of the original child support order.
The basic rule
A parent who wishes to change the terms of the court’s original custody order must bring a motion before the court that had original jurisdiction over the divorce (or any previous child custody dispute). The moving party must demonstrate by a preponderance of the evidence that the custodial circumstances have undergone a significant and substantial change that adversely affects the best interests of the child. The applicable statute lays out the factors that affect any determination of the best interests of the child. The factors include:
- The age and gender of the child
- The wishes of the child’s parents, either individually or jointly
- The wishes of the child (More weight will be given to this factor if the child is older than 14
- The relationship of the child with the child’s parents, siblings and anybody else who may have a significant relationship with the child
- The child’s adjustments to date to the home, school, and community
- The mental and physical health of each individual involved with the child
- Any evidence of domestic or family violence by either parent
The court, if it wishes, may seek the advice of professional personnel regarding any issue in the custody dispute.
The burden of proof
The procedure and evidence presented at a modification hearing are essentially identical with the original hearing, except that the parent seeking the modification of the custody order bears the burden of proof in the modification hearing.
Anyone interested in modifying a child custody order or anyone defending against such a motion may wish to consult an experienced family lawyer for an evaluation of the evidence and an opinion on the likelihood of success by the moving party.
