Changing a Custody or Visitation Order

If you can’t come to an agreement with the other parent, you might need to go to mediation before you can change a custody or visitation order.

Many orders have a section that says that you must participate in mediation before asking the court for changes. Check your current order. If your order requires mediation, and you do not go to mediation before filing a motion to modify the order, the court will probably dismiss your request for a change. They will close the case.

If you started mediation and the other parent refuses to participate and/or doesn’t show up for it, get a note from the mediator to say what happened. Send that note into the court so they don’t dismiss your motion to modify the order.

Even if you are not ordered to go to mediation first, you might want to try mediation before filing a motion with the court. Mediation can help you come to an agreement with the other parent on some or all of the issues. If you agree, you will not have to have a contested hearing. A contested hearing is a hearing where the two parents present evidence to the court and the court decides what will happen.

Visit the Vermont Judiciary website to find a mediator.

Abuse and mediation

If you were abused by the other parent and would be intimidated by them in trying to work out an agreement, then mediation may not be right for your situation.

If you are already involved in mediation when you realize that this is a problem, let the mediator know. The mediator can help you decide if you want to go forward with mediation with some safety planning in place, or if mediation is not right for your case. You or the mediator must tell the court if mediation is not safe for you.

If you have an order that says you must try mediation before asking for a change in custody or visitation, contact a mediator and let them know about your situation. The mediator may decide that mediation will not work in your case and will tell the court that mediation should not be required. You or the mediator must tell the court if mediation is not safe for you.

To ask the court for changes to your custody or visitation order, you can file a Motion to Modify Parental Rights and Responsibilities form with your local family court. You can do this in two situations.

Situation 1 — When there is an agreement

When you both are in agreement about what you want to happen, use this agreement form to write it up. Both of you need to sign the agreement. Submit it with your Motion to Modify form.

Also submit your filing fee. In January 2024 it was $120 without an agreement and $35 with an agreement. You’ll also pay a fee for mailing documents ($3 or $13). Fill out an Application to Waive Filing Fees and Service Costs if you can’t afford the filing fee.

Situation 2 — When there is no agreement

When you don't have an agreement, you need to 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 been a major change that happened since the last order. 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 change the order only if it is in the child’s best interest to do so.

The Affidavit section of the motion to modify form is your statement about why you need to have the court modify your order. In the Affidavit, explain the real, substantial and unanticipated change that happened since the court issued the last order. Also explain why a change is needed, and in the child’s best interest.

Other details

• You can use the links above to print the forms. You can also pick up or call to ask for paper copies of the forms from the court clerk in your county’s Family Division of Superior Court. Filing online is also an option and has an extra fee.
• You will need a copy of your last custody order so you can fill in the name of the case and the docket number of the order that needs to be changed. If you don’t have a copy of the order, you can get one from the court that issued the order.

File the forms with the family court

Give your forms to the court clerk in your county’s Family Division of Superior Court. The court will then serve the court papers on the other parent. You will need to give the court a good mailing address for the other parent.

If the court can’t serve the other parent through the mail, you’ll need to contact a sheriff to serve the court papers.

After you file the motion to modify, the court will decide whether your motion meets the legal requirements for a motion to modify. If the court thinks it does not, it may dismiss the motion. They will close the case.

If the motion is not dismissed, the court may schedule a status conference. A status conference is a short hearing before the judge where you and the other parent tell the judge why you need a hearing. Not every case has a status conference. At the status conference, the court will decide what has happened so far in your case and what needs to happen next.

If you cannot reach an agreement with the other parent, then the court will likely schedule a “contested hearing” to decide whether your motion should be granted. The contested hearing may also be called a motion hearing, court trial or final hearing. The court may tell you to go to a case manager’s conference before it will schedule any time with the court.

If a contested hearing is scheduled, you will present evidence to the court (see below) and the court will decide whether to change the order. The court cannot rely on what is written in your paperwork. At the hearing, you need to tell the court everything. Pretend the judge has not read your motion.

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. You have to prove that real, substantial and unanticipated change has occurred — change that you did not know would happen at the time of the last order. You will also need to prove that changing the order is in the child or children’s best interest. The other parent or their lawyer will be allowed to question you and any witnesses that you bring to the hearing.

Then the other side will get a chance to show evidence about why the order should not be changed. You can question the other parent and any witnesses.

“Evidence” is any factual information that you present to the court. You and your witnesses can present facts by testifying about something that you have personally seen or heard, or by bringing in photographs or objects. You can also bring whatever paperwork you think will be helpful.

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. Instead, that person will need to attend the hearing and testify. (There are some exceptions to this in the rules.) Often you cannot submit police records. Instead, you need to ask the police officer to attend the hearing.

If you need someone to testify about something, and that person does not want to come, you can serve the person with a “subpoena” and pay the witness fee and mileage. (In January 2024, the witness fee was $30.) A person who is served with a subpoena has to come to court and answer your questions. Fill out a Subpoena form. Give one copy to the court. You will have to ask a responsible adult or the sheriff to serve (deliver) the subpoena and fee to the person who you want to testify.

Preparing for the hearing

It is a good idea to make a list of everything that you want to tell the court and exactly what you want the court to order. Note: In court, you won’t be able to read from your list. Before the hearing, practice what you will say.

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. With any witness who supports your point of view, discuss your questions and their answers before the hearing.

It is also a good idea to think about questions you have for the other party and for any witnesses they might bring to the hearing.

Keep your comments and questions focused on the real, substantial and unanticipated change of circumstances since the last order, and why the change you are asking for is in the best interests of the child.

Was it the other parent who filed a Motion to Modify Parental Rights and Responsibilities? And are you against it? If so, you can present evidence (see above) about why there has not been a real, substantial and unanticipated change of circumstances. You can also present evidence about how the change would not be in the child or children’s best interest. The court will then decide whether to change the order.

If you agree with the other parent on how you want the court to modify your current order, you two can sign and file an agreement, also called a “stipulation.” It explains what you want the order to say. The court has a form you can use to write up your agreement.