Modification of Child Custody/Visitation


My ex-husband and I divorced a year ago. At that time, we had a separation agreement that was signed by us both and incorporated into our divorce. That agreement laid out custody and child support for our three children, listing me as having sole physical custody and us having joint legal custody.

Since February, my ex-husband has been paying only 3/4 of his agreed upon child support. As such, I filed to have child support enforced. As soon as he was served that paperwork, he began sending me emails asking to modify our visitation agreement to grant him more time with the children.

I denied his request via return email on the basis that we have an existing agreement and I feel that any change in schedule would not be in the best interest of the children.

I sense that he may be preparing to file with the court to alter the existing arrangement. He claims he’s working in town now, so he should have more visitation, yet when the agreement was signed and I filed for divorce, he was working and living in town, as well. For a brief period prior to and following divorce, he did work out of town, but he’s always maintained a home and address here in the town where the children and I live.

He’s bounced from job to job over the last three years and has had numerous girlfriends, some overlapping, whom he has introduced our children to, never explaining to the children when they break up. He’s also had a history of drug use, but I have no proof of that. I do, however, suspect that’s one of the reason he’s been fired from his last three jobs.

He has also taken the children to my mother’s for overnight visits every Sunday when it is his time with them. He keeps them until bedtime and takes them to her house because he says it is too hard for him to get up and get them ready and get to work on time.

Would this be a circumstance in which a judge would modify our previously-agreed-upon visitation/custody arrangement? How common are modifications? Is there anything I can do prior to him filing for a modification?


This doesn’t actually qualify as a modification of child custody because there is no current order on child custody. Either parent can file a new action for child custody at any time, even after a separation agreement with custody terms has been signed. This will be a brand new hearing and the judge will start from scratch with regard to the schedule. Had your original agreement been set forth in a court order he would have to show a substantial change in circumstances in order to be granted a modification. However, since no order on custody exists, he will simply be filing the initial action for custody.


There is an order on child custody. It was part of our divorce decree that was incorporated into our divorce.


If custody is incorporated into a court order, then in order for him to get a modification he will need to show a substantial change in circumstances. Essentially, he can’t just ask for a modification because he is unhappy with the schedule, he has to show that something has changed so that the best interests of the children will be served by the modification.


So, him simply living 2 miles from me instead of 5 miles from me and having bunk beds (what he calls bedrooms) for the kids and a live-in girlfriend are not enough for him to get the schedule modified, correct?

Yesterday, he stole money from a joint bank account that we’d been using to transfer child support. (I say “stole” because it was money that he owed to me, but that I’d yet to have a chance to transfer.) He refused to give it to me until I let him into my house to get some of his things. When I explained that I wasn’t going to be home because I had to take our oldest son to karate and that without that money, I wouldn’t be able to get groceries or pay childcare for the week, he said, “Well, then I suggest you meet with me today and let’s get things settled.” He willfully withheld support from his children and is threatening me with this possible motion for altered visitation.


It is ultimately up to the judge to decide what warrants a ‘substantial change in circumstances,’ so I can’t say with certainty whether he can meet that element or not. I would move forward with your child support motion if he is withholding support.