What is a Custody Modification?

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It can be very difficult to obtain a custody modification in BC.

A custody modification is a legal request to make specific changes to an existing custody agreement. Typically, a judge responds to this request in divorce court.

Custody modifications are sometimes referred to as a variation application.

In order to change a custody order, your child custody lawyer will need to prove what is known as a material change in circumstances.

daughter of child custody modification BC

Material Change in Circumstances

Parents and lawyers alike try to account for every little detail in a divorce, especially when it comes to child custody. But sometimes, unforeseen circumstances arise or there are significant changes in your lifestyle or that of your ex. An occurrence like this is known in legal terms as a material change in circumstances. 

A material change in circumstances is something that alters the conditions of the child’s life significantly enough that it may change the court’s decision as to what is in the child’s best interests. 

In addition to being significant, the change must be permanent or long-lasting. 

How to Prove a Material Change in Circumstances

The Supreme Court of Canada’s Case of Gordon v. Goertz establishes the standards for proving a material change in circumstances.

If you are looking to change your custody order, you will need to meet the following requirements:

  1. There must be a change in the condition, means, needs or circumstances of the child or in the ability of the parents to meet the needs of the child,
  2. which materially affects the child, and
  3. which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. …The judge must assume the correctness of the initial order and consider only the change in circumstances since the order was issued.

Examples of Material Changes in Circumstances

Generally, a material change is drastic. Judges tend to acknowledge changes such as:

  • One parent becoming addicted to illicit drugs or alcohol
  • One parent moves a considerable distance with the child
  • The child does not wish to have contact with a parent anymore
  • One parent is diagnosed with a mental condition or illness
  • One parent neglects or abuses the child

How Custody Orders Change

If you are able to prove a material change in circumstances, a judge will schedule an inquiry. In this inquiry, the judge determines the best course of action to take.

In some cases, because of how drastic or significant material changes need to be, the judge gives sole custody to one parent.

In the inquiry, the  judge will assess your situation with the best interests of your child or children in mind. They will assess all relevant circumstances relating to the child’s needs and the ability of you and your ex to satisfy them.

During this inquiry, both you and your ex will bear the burden of demonstrating where your child’s best interests lie.

mother and daughter of child custody modification BC

When ruling on a custody modification case, a judge considers factors established under Divorce Act, Canada such as:

  • the existing BC custody arrangement and relationship between the child and the custodial parent
  • the existing access arrangement and the relationship between the child and the access parent;
  • the desirability of maximizing contact between the child and both parents;
  • the views of the child if appropriate;
  • disruption to the child of a change in custody

How The BC Family Law Act Defines Your Child’s Best Interests

If a judge has found a material change in circumstance, he or she will examine elements under the BC Family Law Act to determine whether your custody order should be changed:

  • your child’s health and emotional well-being;
  • your child’s views, unless it would be inappropriate to consider them;
  • the nature and strength of the relationships between your child and significant persons in their life;
  • the history of your child’s care;
  • your child’s need for stability, given their age and stage of development;
  • the ability of each person who is a guardian or seeks guardianship (including you) of your child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
  • the impact of any family violence on your child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
  • whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
  • the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
  • any civil or criminal proceeding relevant to the child’s safety, security or well-being.

Get a Custody Modification

Often, especially in contentious divorce cases, parents have a difficult time coming to an agreement during this process. This is why the vast majority of parents seeking a custody modification retain the services of an experienced custody lawyer, like those here at Dhanu Dhaliwal Law Group

A custody lawyer can help you better argue your case for a custody modification. Generally speaking, those who do hire a lawyer get more of their requests and desires met during a custody modification inquiry than those who do not.

If you’re seeking a custody modification in BC, give us a call today to take action as a parent and fulfil the better interests of your child.

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