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Custody Modification – Grandparents to Parents

Fecteau v. Spierer, COA20-532 (2020).

Child custody orders are modifiable. In order modify, the party seeking a modification must show a substantial change in circumstances, from those found in the previous order, that warrants modification. In some cases, primary physical custody is awarded to a nonparent. Most often, this nonparent is a relative, such as a grandparent. Below, we discuss a case where a parent was granted primary physical custody from the grandparents, and we address the legal standard for how to get there.

  1. Facts: In 2017, a consent order granted custody of RF to Intervenor Maternal Grandparents and secondary custody to Plaintiff. Plaintiff then filed a motion to modify custody in 2018 alleging a substantial change in circumstances that warranted modification for primary physical custody and joint legal with Defendant. At this modification hearing, Plaintiff was granted primary physical custody, while Intervenors were granted secondary custody and visitation. Defendant was granted supervised visitation. Intervenors appealed.


  1. Issue: Was it an error by the trial court when they modified the custody order?


  1. Holding:


  1. Rationale: Intervenors’ first argument was that the trial court improperly considered what is known as the Peterson presumption. Absent unfitness of the parents or neglecting the welfare of their children, the constitutionally protected rights of natural parents to custody, care and control of their children prevail over those of non-natural parents. Basically, natural parents are granted custody of their children over nonparents more easily. However, this presumption is only used in the initial custody determination. It is not permissible to consider this presumption in a motion to modify the original custody order. Therefore, when the trial court considers a motion filed by a natural parent seeking more custody with their children, in preference to the nonparent, the court no longer makes a distinction between parent/nonparent, but rather only considers the circumstances and their affect on the children. In this case, since Plaintiff did not make any argument for use of a presumption, and the trial court did not consider it as a factor in modifying the custody order, there was no error.


  1. Lessons and Observations:


  1. Do not attempt to argue in a modification hearing that you ought to have custody modified because you are the natural parent and the opposing party is a nonparent. It will not work, and if the court considers it, it is reversible error.
  2. Again, a substantial change of circumstances and the best interests of the children are the most important factors when considering modification of child custody. Those are the points to stress to the court. What are the changes in circumstances, and how do they affect the welfare of the child?