The Legal Process for Modifying Physical Custody Orders

Posted By Pedano, O'Shea, McGavic & Hogenmiller, LLC || 9-Jan-2017

Circumstances frequently change after the completion of a divorce, and as such, parents may wish to modify aspects of their parenting agreement, including physical child custody. One such case was presented before the Circuit Court of St. Charles County in August of last year, which resulted in the judge creating a ruling that set the standard for similar cases for many years to come.

In this particular case, a mother sought to appeal a decision that went the way of her ex-husband, who had filed to increase his physical custody time for a number of reasons. The mother claimed that the court had erred by being “overly-influenced” by some factors while not giving enough weight to the ones that demonstrated her ability to maintain the best interests of the children. However, the courts throughout Missouri had never really established which one of the three standards was to be used in which situation.

Three Standards, Now Standardized

The three standards for determining if a change to physical custody is warranted. Those standards are known as the statutory standard, the case law standard, and the modification standard.

The statutory standard is for when one parent seeks a modification that “does not ‘deprive one custodial parent of custody altogether.’” In other words, this standard is now to be used to modify a joint physical custody order, and have it remain as a joint physical custody order.

The case law standard is for situations in which a “substantial change in circumstances” has occurred, and the modification sought would take custody away from one custodial parent entirely. This can apply in only two circumstances: sole physical custody from one parent to sole physical custody of the other, or joint physical custody to sole physical custody of one parent.

The modification standard is different from the previous two, as it pertains to modifying visitation or “parenting time” of the two parents. In these modifications, both parents maintain their current custody standard, but simply alter the time which they get to spend with their children.

Since these standards have now been defined by this case, the courts for the state of Missouri will likely use them for modifications cases going forward. A Chesterfield family attorney will be able to better assist you with determining the best way to present your modification case before a judge using one of these three legal standards.

At Pedano, O’Shea, McGavic & Hogenmiller, LLC, we focus exclusively on family law issues, utilizing a unique and holistic approach to provide you with counsel that is custom tailored to help you achieve your goals. You will never become just a case number at our firm; we take pride in providing each client with compassionate guidance that treats your issue as though it is as important to us as it is to you.

Find out more about how we can help you! Call Pedano, O’Shea, McGavic & Hogenmiller, LLC today at 636.742.1418 for a complimentary case evaluation!