I need to make changes to my custody order. How do I do that?
Answers to frequently asked questions about changing custody orders.
Can you work out an agreement with the other parent?
Should we go to mediation first?
Abuse and mediation
I cannot work out an agreement to change the order, what do I do now?
How do I file a Motion to Modify?
What happens after I file the Motion to Modify?
What happens at the Contested Motion to Modify Hearing?
What is evidence?
What if the other side filed a Motion to Modify the Final Order and I am against it?
It is usually a good idea to start by trying to work out an agreement with the other parent. If you reach an agreement (also known as a stipulation) you can file a Motion to Modify and ask the court to change the order to reflect your new agreement. Usually the court will approve your agreement unless it is not in the child's best interest. If you cannot work out an agreement on your own, you may need to participate in mediation before filing anything with the court.
If you cannot come to an agreement with the other party, you will likely need to participate in mediation. Almost all final orders have a section that says that you have to participate in mediation before coming back to court. If your order requires mediation, and you do not go to mediation before coming back to court, the court will probably dismiss your Motion.
Even if you do not have a mediation requirement, you might consider mediation before filing a motion with the court. Mediation can help you come to an agreement with the other party so that you do not have to have a contested hearing.
If you were abused by the other parent and would be intimidated by him/her in trying to work out an agreement, then mediation is not right for your situation. If you are already involved in mediation when you realize that this is a problem, let the mediator know so that s/he can notify the court if necessary. You could also notify the court yourself. The court might require that the parties participate in Parent Coordination instead.
You could consider filing a Motion to Modify.
Motion to Modify (Change) is the form that you would file with the court to ask the court to change the order. You should only file a Motion to Modify if you can meet the legal requirements or you have an agreement with the other party.
Legal Requirements for a Motion to Modify Parental Rights and Responsibilities (Custody):
The court will not modify (change) the final order without an agreement unless you can show that:
- there has been a real, substantial and unanticipated change in circumstances (see definition below) and
- A change is in the child's best interest
"Real, Substantial and Unanticipated Change in Circumstances": means that there has to have been a major change that happened since the final order, and the change must be something that you did not know was going to happen. Remember that even if there has been such a change, the court will only change the order if it is in the child's best interest to do so.
Get the Forms: You can get the forms online at the Vermont Judiciary website. You can also get the forms you need to file a motion to modify from your local Family Court Clerk's office.
Fees: There is a fee for filing the form and having the motion served on the other party. If you cannot afford the fees, fill out and file an Application to Proceed In Forma Pauperis. You can also get this form at the Family Court. This form must be notarized. You will have to sign the form in front of a notary public and swear that the information on the form is true. You can find a notary at the Family Court clerk's office.
- You will need a copy of your final order so that you can fill in the name of the case and the docket number of the order that needs to be changed. If you no longer have a copy of the order you can get one from the court.
- You will need to fill out an Affidavit that will be attached to the Motion to Modify. An affidavit is your statement about why you need to modify the order. After you have filled it out, you will need to sign it in front of a notary and swear that everything in it is true. The court clerks are notaries. You can also find notaries at banks and town clerk's offices.
- Explain what you want the new order to say.
File the Forms with the Family Court
The Family Court will then serve the papers on the other parent.
The court will decide whether your Motion and Affidavit meet the legal requirements for a Motion to Modify. If the court thinks it does not, it may dismiss the motion.
If the Motion to Modify is not dismissed, it will probably be set for a status conference.
At the status conference, the court will determine what has happened so far in your case and what needs to happen. If you cannot come up with an agreement, then the court will likely schedule a contested hearing (it may also be called a court trial or final hearing) to decide whether your Motion to Modify should be granted.
The contested hearing is where you present evidence to the court, and the court decides whether to change the final order.
First, make sure that the hearing that is scheduled is, in fact, a contested hearing, or court trial, or final hearing, where evidence will be presented. If it is not clear from looking at the notice, call the court and ask the clerk.
At the hearing, the court will give each side a turn. If you filed the motion, you will go first. You will present all of your evidence about why the order should be changed. The party on the other side will be allowed to question you and any witnesses that you bring to the hearing. Then the other side will get a chance to put on evidence about why it should not be changed, and you can question his/her witnesses.
You have to prove, using evidence, everything that you have said in your paperwork. The court cannot rely on what you said in your paperwork. You will need to prove that there has been a major change that you did not know would happen at the time of the final order. You will also need to prove that changing the order is in the child/ren's best interest.
Evidence is any factual information that you present to the court. You can present facts by testifying about something that you have actually seen or heard, or bringing in photographs or paperwork, or objects. There are a lot of rules about what kind of evidence the court will allow and what it won't allow. In general, the court will not allow you to submit a letter or an affidavit from someone. That person will need to come to court and testify. (There are some exceptions to this in the rules). If you need someone to testify about something, and that person does not want to come, you can serve the person with a subpoena. A person who is served with a subpoena has to come to court and answer your questions. You can get subpoenas from the court. You will have to have a responsible adult or the sheriff deliver (serve) the subpoena on the person who you want to testify.
It is a good idea to make a list of everything that you want to tell the court. If you are bringing in people to testify (witnesses), it is a good idea to make a list of the questions that you want to ask each witness.
You can present evidence (see above definition) about why there has not been a real, substantial and unanticipated change of circumstances, and/or how the change would not be in the child/ren's best interest.
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