If a custody order is already in place, how can I get it changed?
If you have a custody order already in place, you can ask the original court that issued the order to make changes to it (modify it). Generally, you can only ask to have a final custody order modified if there has been a substantial change in circumstances since the order was issued and changing the order would be in the child's best interests (although the exact legal standard can vary from state to state). For most states, we have more specific information about modifying a custody order. To check to see if we have this information in your state, scroll up and enter your state in the drop-down menu above.
Example: If there are new allegations of abuse, if either parent has been convicted of a crime that affects his/her parenting ability, a parent's sudden drug use, etc. are possible examples that may count as a change in circumstances. These are just some possible examples that may be relevant in your state -- there could be many others.
Generally, once a court has jurisdiction, that court will keep jurisdiction, even if you move to another state. If you have moved, you can ask the court that issued the original order to change the jurisdiction to the new state that you are in. Under certain circumstances, you can ask the court in the new state to modify the order without going back to the original state. You will find more information about modifying a custody order in a different state in the following questions below.
Modifying an order is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. Go to our Finding a Lawyer page for legal referrals. You can also email us for more information about when someone can file to modify a custody order in a new state.
Are the laws for modifying a custody order the same in each state?
No. The law for Massachusetts (and Puerto Rico) may be different than the laws for the rest of the states. The following questions in this is section address the laws in the rest of the states. The information below talks about the situation when you have a final child custody order from a state you used to live in, but now you have moved to a new state and you want to try to modify (change) the order in your new state’s court. The information provided is based on a law called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which has been adopted (followed) by every state except for Massachusetts (and Puerto Rico). Massachusetts (but not Puerto Rico) currently follows an older law called the Uniform Child Custody Jurisdiction Act (UCCJA), and the rules that we describe in the questions below may be slightly different if you live in one of those states. Please feel free to write to our Email Hotline with any related questions.
This issue is quite complicated and we strongly suggest that you get a lawyer to help you. Please go to our Finding a Lawyer page to find free and paid legal help. You also may contact the Legal Resource Center on Violence Against Women at 1-800-556-4053 for help finding an attorney if there has been a history of domestic abuse and you have a custody case involving more than one state.
I want to modify my final custody order but I have moved to a new state. Can I have the custody order modified by my new state?
Maybe. If you have a custody order and you move to another state, you will generally still have to return to the original state and ask the court that issued the order to make any modifications (changes) to the order. However, it is possible that your new state would agree to modify the order if:
- the original court decides that it cannot modify (change) the order; or
- the original court agrees to transfer the case to your new state; or
- there are no longer any interested parties (the child, a parent, or an individual acting as a parent) living in the original state.1
Note: In the situations described in #1 and #2 above, you would still have to file your legal papers in the original state and ask that the case be transferred to the new state for the modification hearing. In the situation described in #3, you may be able to file the modification petition in the new state you are in without first going back to the original state.
1 UCCJEA § 203
Why might a judge agree to transfer the custody case to my new state?
The judge might agree to transfer your custody case to your new state if you can meet one of the following requirements:
- the judge in the original state finds that there are no longer significant connections or substantial evidence regarding the child in that state; or
- the judge in the original state finds that the new state would be a more “convenient forum” (place) to take over the case (see What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case? for further explanation of this); or
- none of the child’s parents or guardians still live in the original state and neither does the child.1
1 UCCJEA §§ 202, 203
What factors will a judge consider in deciding whether the new state would be a more convenient forum (place) to hear the case?
In Why might a judge agree to transfer the custody case to my new state?, we listed three reasons why a judge might agree to transfer your case to a new state. The second reason listed is if the judge in the original state believes that the new state is a more “convenient forum.” Here is a list of factors that the judge must consider when deciding if the new state would be a more convenient forum (place) to hear the case:
- whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
- the length of time the child has lived outside of the original state (the longer you have been in the new state, the better);
- the distance between the original state and the new state;
- the relative financial circumstances of the parties (for example, possibly if the other parent is in a better position to handle the costs associated with flying to another state to appear in court, it could weigh in your favor);
- any agreement you and the child’s other parent may have over which state should take jurisdiction (power) over the case;
- the nature and location of the evidence that would be required to resolve the litigation (e.g., Would more witnesses be in the new state?);
- the ability of the court of each state to decide the issue quickly and effectively; and
- how familiar the court of each state is with the facts and issues of your case (i.e., if the judge in the original state has handled court cases regarding the child and knows the parties well, it may not make sense to transfer the case to a new judge in a new state).1
We strongly recommend getting the help of a lawyer to figure out if your situation meets the requirements listed. For legal help, go to Finding a Lawyer . The Legal Resource Center on Violence Against Women may be able to assist your attorney to understand the arguments available under the UCCJEA if you are a victim of abuse. Their number is 1-800-556-4053.
1 UCCJEA § 207
I think that I might meet the requirements to transfer my custody case to a new state. Where do I begin?
If you believe that your situation may come under the laws explained above, we strongly suggest talking to an attorney in the original state where the order was issued as well as in your current state for help in filing the appropriate legal papers. Go to our Finding a Lawyer page for legal referrals. You also may contact the Legal Resource Center on Violence Against Women at 1-800-556-4053 for help finding an attorney if there has been a history of abuse and you have a custody case involving more than one state.
If you cannot find an attorney, and you would like to talk more with WomensLaw.org about your particular situation, you can email us on our Email Hotline and we can see if there is any further information we can provide.