I was just asked when you can ask to change custody if your child’s needs are not being met by the other parent and the parenting schedule is not being observed. It depends on how long it has been since the last Custody Decree or Order was entered.
Custody may not be modified within two (2) years of a Custody Decree unless the parent seeking a change demonstrates an immediate danger to the mental, emotional, physical, or moral well-being of a child from two (2) independent sources. Those sources must file Affidavits summarizing their belief as to the immediate danger with the Motion to Modify Custody. At a Hearing, the Court must be persuaded that the danger exists and that the best interest of the child requires a change of custody.
After two (2) years, you may seek a change of custody based upon the best interest of the child. There must be some change in circumstances. The Court is obliged to consider the same factors which it considered when Custody was originally established. Specifically, the Court must consider the wishes of each parent (or custodian); the wishes of the child (although this should rarely come from the child, but from a therapist or evaluator); the mental and physical well-being of the parties; the home, school and community proposed by each parent; the relationship the child has with members of each party’s household and family; the existence of domestic violence; and other factors bearing upon the best interest of the child.
Visitation violations are an important factor because they suggest that the violator is unwilling to co-parent. An inability to co-parent is a factor the Court must consider when choosing between joint and sole custody.