It’s just a change in the custody/visitation plan. A formal “custody modification” is a court-approved change of a previous custody order. The previous order may have been in a divorce case (if the parents were married) or a “Custody Allocation” case (if the parents were not married). This could mean a change in where a child lives, the amount of parenting time a parent gets, or when the parenting time occurs.

If there is no existing court order about custody, you will need to file either a divorce petition (if the parents are married) or a custody petition (if the parents are not married), to set up a parenting plan.

“Parenting time” is the time a parent spends with his/her child. This is written down in a schedule called a “parenting plan.” This schedule is attached to your custody order. Parents can agree on a schedule together and ask a court to approve it. If the parents cannot agree, the court will create a schedule for the parents.

When deciding how much parenting time a parent should get with a child, the court looks at things like:

• the financial and living situation of each parent;
• the parent’s previous relationship with the child;
• the child care responsibilities and duties carried out by each parent previously; and
• other factors to decide what’s best for the child (not necessarily what’s best for the parent).

Ordinarily, a custody modification can be requested only when:

• there is a substantial change in the child’s or a parent’s circumstances; or
• the parents agree to change their parenting plan.

The court can deny any requested change if it thinks the new plan would be harmful to the child. In unusual situations, the parenting plan can be changed even if there has not been a “change in circumstances,” if it would be in the child’s best interests to do so. For example:

• to better match the wishes of a child who is 14 years old or older;
• to better fit how the parents have actually been dividing time and caring for the child;
• If one parent has made false claims about domestic violence or child abuse multiple times, the court may even look at that as a reason to change the parenting plan.

You can also learn more on this topic on our podcast.

There is no simple definition of “substantial change in circumstance” in West Virginia. There are just too many different things could possibly be important for a given parenting plan. The law leaves it to the judge to decide whether the change is “enough” to justify making a change. The courts also understand that too much change can be a bad thing for kids, and may refuse to change the parenting plan every time something changes in a parent’s life.

However, West Virginia law does list some things that do NOT amount to a “substantial change in circumstances.” For example:

• a change in how much money a parent now brings home because she lost a job and could not help it;
• a parent getting remarried or moving in with someone else; or
• a parent making a decision about the child’s care, like putting the child in daycare.

However, a court can see the following issues as a reason to chance a parenting plan if either parent has:

• hurt or neglected the child;
• made multiple false reports of domestic violence or child abuse; and/or
• continually kept the other parent from seeing the child when s/he is supposed to.

Even if there is no substantial change in circumstances, a court can change a parenting plan if:

• The current plan is not working and is harmful to the child in some way; or
• You and the other parent agree to a new arrangement and ask the court to approve it.

To get a court to change a parenting plan when there has been no real change in the underlying situation, you need to tell the judge why a change is in the “best interests of the child” (not just in the parent’s best interest). You will also need to explain that the change:

• fits how the parents have actually been caring for the child in previous months or years; or
• is only a small change in the plan; or
• fits the wish of a child who is at least 14 years old about where to live.

Start by filing a written “Petition for Modification.” This usually should be filed in the court where your last custody plan was approved and ordered. The Petition for Modification is available on the West Virginia Supreme Court of Appeals website, along with Instructions and a Motion for Temporary Relief.

On the first page of that form, in Section 2 “I want the Court to modify the Order in these ways:” you can check the box for “Change Parenting Plan with regards to.” Then check the boxes that apply to your situation.

On the second page of the form, Section 3 is to describe “The following circumstances justify the modification I am requesting.” Here you must explain what has changed that you think justifies your request.

The entire form must be completed. It also must be signed by the person requesting the change. Afterwards, it will must be filed with the circuit clerk of the county. Then you must send a copy of the form to all of the other parties in the case.

A parent moving from one address to another is not automatically an adequate reason for a change in the parenting plan. However, things are different if:

• one parent is moving so far away that it makes it hard for either parent to follow the existing parenting plan; and/or
• a parent would not need to move (or would not need to move so far away) in order to accomplish their purpose in moving. For example, moving to go back to school may be reasonable; moving across the country to go back to school may not be reasonable.

The parent who is moving must let the other parent know at least 60 days before the move. If 60 days isn’t possible because the reason for move came up quicker than that, the moving parent must give notice as soon as they find out about the move. The moving parent also must to file a “Notice of Relocation” with the court. But if the move does not make it difficult for the other parent to follow the current plan, you do not need to file a “Petition for Modification.” For more information about relocation, read the article about Changing a Parenting Plan When a Parent is Moving to a New Location.

A military parent’s absence or move because of military service can be a legitimate reason for changing a parenting plan, depending on the circumstance. A parenting plan can be temporarily changed to establish a schedule that would better accommodate the parties during the military parent’s service.

Being in jail is usually considered a substantial change in circumstances. For the custody modification hearing, the parent who is in jail will be appointed a lawyer to act as Guardian ad Litem. The Guardian ad Litem will assure that the wishes of the person in jail are communicated to the court. When released from jail and back in a stable living situation, that parent may be able to have his or her rights to be with the child restored.

Unless the new marriage or relationship is harmful to the child, getting remarried or living with someone else is not a ground for a custody modification.

Unless the loss of job poses specific harm to the child, a parent losing a job when he could not help it is not a ground for a custody. Child Support may be modified due to loss of a job. But loss of a job by itself isn’t usually grounds for changing the parenting plan.

Unless the decision about daycare is harmful to the child, a parent’s reasonable caretaking decision is not a ground for a custody modification. The other parent may do whatever is reasonable during their parenting time. This is true even if outside childcare would not be needed if the child stayed with you.

A custody change can either be temporary or permanent. How long it lasts depends on your situation and what you are asking the court to do. If the circumstances change again in the future, you or the other parent can submit another “Petition for Modification” later. You can do this if the parenting plan is not working for some reason, or if there is some other substantial change in circumstance. If an emergency situation occurs, you can file for an emergency custody order.

Emergency motions should be used in only in true emergency situations. A court may grant an emergency order giving temporary custody of a child when:

• the other parent is about to leave the state with the minor child without giving proper notice;
• the child is in danger; or
• the child is being physically harmed by the other parent.

A court should make a ruling very quickly in these cases. In crisis situations a court order can be issued even though the other parent hasn’t been notified about the request for emergency order. If the court grants an emergency order, it should hear complete evidence from both sides of the case within 10 days.

A court will try to take into account where a 14-year-old child (or older) wants to be. Age 14 is a general dividing line. Judges are less likely to consider the wishes of a younger child, and more likely to consider the wishes of an older child. But it also depends upon the maturity and intelligence of the child, and the reasons the child has for wanting a change.

Just because a court tries to consider a child’s preference does not mean that the actual parenting plan will be what the child wants. If the court finds that the arrangement is not in the best interests of the child, it will deny the child’s request.

A child must be at least 14 years old for a parenting plan to be changed simply because of a child’s age and wishes. A change is more likely to happen if the parents agree with the child, or if there has been some other change that is the reason for the child’s wish. Finally, the requested change must also be in the child’s best interests and be necessary to fulfill the child’s realistic wishes of where s/he wants to live.

For your Petition for Modification to be successful, the court will look to see:

• Whether there has been a substantial change in circumstance in your situation; or
• Whether the child is being harmed; or
• Whether the parents agree to a change in parenting plan.

Keep in mind that the court needs to be made aware of all major life changes. For example, if one of the parents is moving, the court needs to be told. This is not only to protect your child, but will also help protect you as a parent.

For more forms and information on this topic, go to LAWV’s Guided-Self-Help-Forms and look under “Modifying or Changing Custody: What forms do I need to complete to file a custody modification case?”