When a couple separates with children, child custody is always a part of the court proceedings. The Judge will want to make sure custody issues are settled before closing the case so that there is some stability moving forward. Child custody orders will last until the child(ren) turn eighteen (18) and can legally make their own decisions. Sometimes it is necessary to seek a modification of the original order. Knowing the legal standard is crucial to framing your case and position.
Before getting to the legal standard, a little review might be helpful. Child custody has two parts, physical and legal. Physical custody relates to where the child(ren) live on a day to day basis. Legal custody relates to the major decisions of life which legally must be made for the child such as where to attend school, medical treatment, visiting the dentist for braces, etc. Both parts can be shared or sole. The first step in seeking modification is to consult the original court orders – very often the document relating to child custody will be the separation agreement which was drafted during a divorce proceeding and then incorporated into the judgment of divorce.
Massachusetts has several legal standards in family law matters. Some of these standards come from case law and some from statutes, (Massachusetts General Laws, or MGL). For child custody, the legal standard can be found in M.G.L., chapter 208, section 28. This statute says that courts may modify earlier judgments which relate to care and custody of minor children of the parties when, “…the court finds that a material and substantial change in the circumstances of the parties has occurred and the judgment of modification is necessary in the best interests of the children.”
There are three significant elements to this standard which focuses on a change in circumstances since the earlier order of judgment was issues. Those three elements are material, substantial, and necessary in the best interests of the children. Because of the way the standard is phrased, the Judge will also have to make two decisions. Let’s look at the elements first.
First, there is a material change in circumstances. When you think of a material change, think important change. A material change can be relative or contextual to the parties – that is to say, it is material to you but not necessarily someone else. If you had to narrow down your reason for seeking modification to one issue, what would it be?
The second element is substantial which modifies material. So not only does this change have to be important, it has to be very important. A primary goal for children is stability, which is the reason that the standard for modification is so high. For example, a change in employment or income or health of your former spouse may be material. However, Massachusetts courts have ruled that these things are not – by themselves – material and substantial enough to change a child custody order.
Once a Judge has ruled that the change is materially substantial, the Judge must then determine whether the modification is necessary to the child’s best interests. Judges have very broad discretion when deciding to grant a modification and when determining the credibility of the evidence and testimony. A strong showing of why the modification is in the child’s best interests will help you tremendously.
As you prepare your case to modify a child custody order, make sure to cover each of the three elements. But recognize there are two phases to the Judge’s decision process when applying the legal standard. Something could be found to be a material and substantial change, but then not be in the best interests of the child.
By way of example, consider a case where the other parent has changed jobs taking a significant pay cut. To be closer to their new job they have moved from a neighboring town near Boston to Springfield, MA. Let’s also consider that the original child custody order was for the parents to share legal and physical custody alternating weeks that the child lived with each parent.
Depending upon how you frame your argument and other factors that may be unique to your situation, the Judge could find that the move and significant cut in pay is a material and substantial change. However, proposing that you eliminate the other parents shared custody and eliminate visitation is unlikely to be in the child’s best interest.
Knowing the correct legal standard is the best starting point. From there, you plug in your facts with the strongest reasons possible to meet each element of the standard. But remember to be reasonable in your proposed change.