Modifying Recent Custody Orders

Invariably, when a custody matter has to be heard by the court, at least one party is going to be unhappy with the outcome. Generally speaking, if one disagrees with a court order, the method by which to redress the complaints is to ask the court to reconsider the order, or to take an appeal of the order. If one fails to do either of these within a specified period of time after the order is entered, then one loses the ability to raise his or her complaints with the order.

Child custody, however, is not like most matters in that it is always modifiable. This gives an aggrieved party the option to, rather than appeal the order or ask for reconsideration, simply request modification of the custody order, which potentially puts the entire matter back before the court. This can even be done after the standard period for filing an appeal has elapsed. Therefore, it is possible for an aggrieved party to seek modification of a custody order, which itself could have been the result of a drawn-out custody trial, on which the proverbial ink is barely dry.

Approximately thirty years ago in custody modification actions, Pennsylvania required that a petitioner show a change in circumstances before the court would consider modifying custody. That rule, however, has fallen by the wayside, and now a custody order that is mere weeks old can be modified if it is in the best interest of the child to modify the order. To answer the threat of constant petitions for modification, case law in Pennsylvania does provide that, where there has not been a change in circumstances and a party is seeking modification, there is a presumption that the current order is still in the best interest of the child and the petitioner would need to show what has changed that makes it no longer in the best interest of the child.

Therefore, while there is no technical requirement that a party asking to modify a very recent custody order prove a change in circumstances, he or she faces an uphill battle to show why what was very recently found to be in the child’s best interest is no longer so when no circumstances have changed.