How Positive Change Can Modify a Child Custody Order

Padilla v. Whitley De Padilla, COA19-478 (2020) (unpublished).

Child custody orders are modifiable. In order to do so, the party seeking a modification must show a substantial change from the circumstances found in previous order that warrant the modification. It may seem obvious that a diminishment in the custodial parent’s life may meet that threshold. But below, we discuss a case where improvements in the noncustodial parent’s life warranted a modification in his favor, granting him more time with his kids and more decision-making abilities.

a) Facts: Defendant Mother and Plaintiff Father married in 2005 and subsequently divorced in 2014. Two minor children were born of the marriage. In 2016, after a heavily contested custody dispute, the trial court entered an order granting Defendant sole custody and Plaintiff minimal visitation. The trial court did so because they found issues with the Plaintiff’s “unhealthy” relationship with his girlfriend, his mental health, and unstable living situation. In 2018, the trial court granted a modification, maintaining primary custody with the Defendant, but granting Plaintiff more visitation and expanded his parental rights. Defendant Mother appealed.

b) Issue: Did the trial court abuse its discretion when they modified the custody order?

c) Holding: No.

d) Rationale: Custody Orders may be modified if the party requesting modification shows that there has been a “substantial change in circumstances” affecting the welfare of the child that supports modification. Moreover, the party requesting modification does not need to show a detrimental change in circumstances for the custodial parent. In fact, a substantial beneficial change for the noncustodial parent can also warrant a modification. In awarding more rights and visitation to the Plaintiff, the trial court found: that the “unhealthy” relationship with the girlfriend had ended; the children would benefit from Plaintiff being present at school events; Plaintiff now had a stable and safe apartment; Plaintiff was seeking to be a part of the children’s lives; and Plaintiff had been addressing his mental health needs. The Court held that while there was no change regarding the custody of the children for the Defendant Mother, the substantial positive changes in circumstances for Plaintiff Father warranted a modification, and it was in the best interest of the children to have a “more meaningful relationship” with their father.

e) Lessons and Observations:

a. For modification of child custody, you do not always have to show a negative change in circumstances for the custodial parent. The court will consider positive changes in the noncustodial parents and may find that those changes are enough to allow modification of a custody order.

b. If you are a parent seeking modification of a custody order to increase your rights and time with your children, be proactive and work on yourself; address the reasons why the original order was entered the way it was. You do not always have to wait for the other parent to have a change in circumstances. In this case, there were no determined changes in the Mother’s life that affected the welfare of the children.

c. Note: this case does not support that positive changes in a custodial parent’s circumstances would warrant a modification awarding more time and rights to that custodial parent and taking away time and rights from the noncustodial parent.