Due to the increasing support for the notion of involving a child/children in custody decisions, it is definitely possible to make amendments to an existing custody agreement, should it be in the best interests of the child/children. However, in order to avoid constant unrelenting custody trials and consequent substantial legal implications, it is not a process that the courts consider lightly.
Before Approaching Divorce Court
It is always advised that you talk through the changes you want to make with your former spouse. If there is a possibility that you could both agree on the suggested changes to the custody agreement without going to court, then this is recommended as the simpler and preferred method.
In the case where you are able to come to an agreement on the proposed modifications to your original agreement, the final step is to contact a Family Law lawyer to execute the necessary amendments to the existing agreement, or draw up a new, more appropriate agreement to reflect the changes.
If, however, a dispute arises between you and your former partner, then making use of alternative dispute resolutions can help both parties find a compromise. By making use of a mediator, you may be better equipped to come to an agreement. With lawyers involved, parties also employ four-way meetings to aid in resolution.
Should you achieve no success through these processes, then the decision should be made in court.
Court Proceedings in Changing Child Custody Agreements
Depending on what modifications you are requesting to make, the following processes are applicable:
- Agreement: should the original custody arrangement exist in terms of an agreement signed by you and your former partner, then you will be required to bring an application to the court that sets aside the section you wish to modify. Once that has been set aside, then the court can issue a new order that gives effect to the changes.
- Court order: should the original custody arrangement exist in terms of a court order, then the application to court will entail requesting the court to make an amendment to the custody order.
What Is a ‘Material Change’?
As aforementioned, making a change to an existing custody order is not something that the court will consider lightly. In order to prevent unhappy parents from returning to court every time they disagree on the care and control of their children, the court has introduced the ‘material change’ test.
Should you wish to make amendments to the standing custody agreement or order, then you will be required to prove that there has been a significant change in circumstances surrounding your custody arrangement that warrants an amendment, which had not been anticipated at the onset.
It is important to note that the change in circumstances alone is not enough. The change must have significantly modified the needs of your child/children, as well as you and your former partner’s abilities to meet those needs. Moreover, the change will not be considered ‘material’ unless there was no possibility of foreseeing or reasonably foreseeing such a change when agreeing to the original arrangement.
Instances that could justify an amendment to the original agreement or order include:
- a change in the child’s wishes, for example, there has been a severe breakdown in the relationship between them and a parent, so they no longer wish to have contact and/or live with that parent;
- relocation of a parent to a different province or country;
- abuse of drugs and/or alcohol by a parent, which has led to the living conditions being intolerable and not in the child/children’s best interests; and
- physical and/or emotional abuse of the child/children by the parent with whom they live.
If the court is satisfied that you have proven a material change in circumstances, then the judge will undertake a new evaluation of what amendments would be the best result for the child/children’s interests. The burden rests on both parents to prove that his/her ability to provide care and control is in their child/children’s best interests.
The court, in its assessment of what would be most beneficial for the child/children, is likely to consider the following factors:
- where appropriate, the child’s view;
- the advantage of increasing interaction and communication between both parents and the child/children;
- the possibility of a disruption to the child/children’s routine as a result of a change to the custody arrangement; and
- the reason for relocation to another country or province (if applicable).
It is important to remember that the court will consider these factors in light of what is best for your child/children rather than your interests as the parents.
This article served to provide you with some information regarding the essentials of changing child custody arrangements in British Columbia. This is, more often than not, an emotional and complex matter, so it is in you and your child/children’s best interests to seek legal advice from a Family Law lawyer who is equipped to help you navigate through your custody matters.
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