Initial custody determination


#1

The following is an excerpt from the ROSEN website pertaining to custody:

However, future modifications to a previously established written custody arrangement may not be so easy. That will depend on whether you and your spouse agree over the subsequent modification. If parents cannot agree in the future to a change that one parent or the child wants, the court would become involved if the dissatisfied parent sued. In such a case, where the parties had not previously litigated but had settled custody by prior written agreement, the court would make its own initial determination of custody and visitation without either party’s having to show changed circumstances affecting the welfare of the child. The court’s initial determination would be based, as always, on the child’s best interests.

The question I have is my husband and I agreed (through our attorneys) to a custody agreement within our divorce consent order back in January 2012. This order was filed with the courts, although was decided by us. In August my husband was not happy with the terms of the order and decided to file a motion to modify custody-- Does this mean that he will not have to show “changed circumstances”?


#2

The excerpt is trying to distinguish the difference between an agreement and an order. If the agreement was contained in a consent order, it is enforceable as an order, and therefore a motion to modify is required and the moving party must show a substantial change in circumstances.