We take numerous inquiries day in and day out from individuals who have gone through a family law case and are interested in changing custody. How does one go about it? Are there time restricitions for doing so? What is the burden of proof? What type of evidence does one need to modify the existing orders? How long will it take and what might it cost? What are the procedures involved? Today’s blog will tackle all of these questions.
- How does one go about changing custody? If there are final orders entered in a family law case, post judgment to modify custody or placement, a litigant would need to file a petition or motion to modify the orders. This requires the drafting of a motion, petition and best practice to have an accompanying affidavit setting forth the specific reasons the request is being made, along with the specific relief that is being sought.
- Are there time restrictions for doing so? The answer is yes. There is a two year prohibition on modifying custody or placement. Wisconsin creates a two year “cooling off” period, to discourage continued custody and placement litigation once the final orders are set. To modify within the first two years, one would need to show that the children are in “imminent harm.” After the two years, the burden is less, but there remains the presumption that things should be left as is. One would need to show the court that there has been a substantial and significant change in circumstnaces and that there are compelling reasons to modify either custody or placement.
- What is the burden of proof? The person filing the motion bears the burden of convincing the court that there is just cause to modify the orders. As stated above, if brought within the first two years, the burden is showing “imminent harm” to the child. After two years, the burden is on showing a substantaial and significant change in circumstances to warrant the court in modifying the orders.
- What type of evidence does one need to modify the existing orders? If within the two years, there would need to be exigent and emergency time of circumstances to modify either custody or placement. After the two years, the burden is much less, but the presumption remains that things should be left as is. Arguing that you love your children and want to spend more time with them, or the other parent is interfering with your placement, or that the children are older are not sufficient legal reasons to modify the orders. If the children are failing in school, if a parent has a drug or alcohol problem, if the parent has remarried and has an abusive spouse, those types of examples are sufficient evidence for the court to entertain the motion to modify custody or placement.
- How long will it take and what will it cost? Be prepared to be involved in post judgment litigation that could drag on for a year or more. By the time the motion is intiially heard, the court sends the parties to mediation, if mediation doesn’t work, the court appoints a guardian ad litem, who probably will need 90-120 days or so to conduct an investigation, from the time of filing the motion to the time of securing a contested hearing or trial date, expect to spend a year or so in court over custody and placement issues. Mediation costs are usually around $100 each; if there is a case study with a social worker ordered, that can cost around $800 each. When the guardian ad litem is appointed, most courts will order the parties to each deposit around $1,000 to serve as advance monies to compensate the guardian ad litem for their time. The guardian ad litem charges per hour, just like private attorneys may do. If the case isn’t settled, and winds up going to trial, with private lawyers involved, it is not unusual that each party may wind up spending up to $10,000 each or more in post judgment litigation.
- What are the procedures involved? Mediation is mandatory and will be court ordered, unless there is domestic violence involved. Sometimes the court may order the parties into mediation prior to the initial hearing on the motion, and in other cases or counties, the court may hold an initial hearing first, adjourn that hearing to enable the parties time to mediate. If mediation settles the case, there would be no further court hearings. If mediation doesn’t work, the court will have an adjourned court hearing, most likely for purposes of ordering the appointment of a guardian ad litem, and in counties where there is an internal social worker department, may also order a case study. Both the social worker and the guardian ad litem will need time to conduct an investigation, probably 90-120 days. The case will be adjourned another time for purposes of allowing the investigation and for purposes of coming back into court to receive the recommendations of the guardian ad litem and if a case study was ordered, to receive the recommendation of the social worker as well. If following that hearing, there still isn’t an agreement between the parties, the court will set a contested hearing or trial date, that probably will be around 90-120 days after the last status conference.
What are the takeaways from all of this? It is a good idea to sit down with an experienced family lawyer in advance of filing any post judgment motion to modify custody or placement. By doing so, the family lawyer can advise you of what your chances might be, how long it is going to take and what the cost may be to you.