Why Do People Petition for a Modification to a Divorce or Custody Order?
Many times, the need to relocate can be one of the reasons people petition for a modification. One party gets a job promotion that they didn’t foresee at the time of the divorce, which leads to a cross-country move, and their current parenting schedule will not work when they can no longer exchange the child every week, due to the thousands of miles that now separate them. This prompts the need to review their current order.
At other times, there’s a more unfortunate reason prompting a review, like a spouse who has developed a substance abuse problem following the divorce or who suffers a bout of depression or another mental health issue. The calamities of life do not end once the divorce decree has been signed. There are real human emotions behind these things, and some people can hold it together during the divorce, but then things start going downhill afterward. If either parent believes that the child’s best interest would be served by changing things, that is usually enough to have it be reviewed through the process again.
There is a difference in changing custody versus just changing parenting time. So, for example, in Kentucky, you can’t change custody within a two-year period from the last order, unless it seriously endangers the child. If you have somebody who has gotten involved in a relationship with a felon who is a domestic violence offender and who is convicted of child abuse in the past, for instance, that would be an extreme example of how that child may be seriously endangered because they are going to spend time with the other parent while that other adult is in the home. But if one parent just doesn’t like the way the other parent is dressing the child, that is not going to be a serious endangerment that the court would be willing to consider within the two-year period.
Major changes are harder to make than more simple changes. Let’s say somebody’s work schedule changes and they’re now off every weekend instead of every other weekend. The initial schedule was designed around that first work schedule, so it could then be argued that the child’s best interests would be served by shifting a few days here and there, even though two years have not passed. The less significant the change, generally, the easier it may be for people to pursue.
In Indiana, the court doesn’t have time limits on those issues. Some people can review things every few months. Others do it once, and that gets them through until the child graduates high school.
Again, modifications are very fact-specific, so it can be serious life problems that lead people back into the process or just things that are outside of their control that require some tweaks to the custody arrangement.
Which State Will Hear the Modification Request? Can Either State Hear the Case?
The answer depends on where everybody was at the time of the relocation. If it’s a situation where they got divorced in Kentucky but have both since moved to the Indiana side of the river, then it’s not likely for a Kentucky judge to hear that. The judge in Kentucky may require that they file a case in Indiana and pursue a modification there. In a more common scenario where one parent has moved and the other one hasn’t, then the default rule can be that it stays where the divorce occurred. That means that if the parties got divorced in Kentucky and only one parent then moved across the river, the judge in Kentucky will likely hear that request unless good reason is shown because there’s still some connections to where the case was originally filed and finalized.
Again, if parents are in two different locales and they are arguing about who should do the modification, then particular attention is given to where the child is, particularly where information about the child is (their school, their church, their doctor, etc.). Let’s say the child isn’t doing well in school and that school is in another state; that might tip it in favor of doing the modification in the new state because more of the evidence about the child is there. It’s a case-by-case scenario.
While you can move cases from county to county within the same state, most people don’t realize that there is not a state-to-state system. When clients come to us after everyone has moved to a new state and agree that it should be done in a new locale, it’s almost like starting a brand-new case. They can’t just transfer it from Kentucky to Indiana, or vice versa. We have to get certified copies of their divorce decree from the other state and file that with the new state. There is a kind of science to properly letting the new court know what’s happening in the old court, and it’s complicated by the fact that one state system doesn’t know how to deal with another state’s old file. We act as the middle person who can help connect those dots and ensure that the modification is still done properly.
For more information on Modification of a Divorce or Custody Order, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (502) 512-0024 today.
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