When Can I Move to Modify Custody?

When can I move to modify custody? A look at Maryland’s rules and case law surrounding the ability and right to modify custody

By: Elizabeth J. McInturff, Esq. and Joseph Fiocco, Legal Writing Extern

You’ve reached an agreement with your ex regarding the custody and visitation of your shared children – or maybe there’s been a court order entered – but circumstances have changed and you’d like to modify the schedule, what can you do? 

The court’s primary concern is always to the best interest of the child, and thus it is empowered to modify any agreement or order with respect to the care, custody, education or support of any minor child, provided, of course, that the modification would be in the child’s best interests. 

However, before the court may modify custody, the burden is on the moving parent to show that there is a need to modify custody through demonstrating both (i) a material change in circumstances, and (ii) that the modification would be in the best interest of the minor child. 

Material Changes in Circumstances

So what is a material change in circumstance? For example, does the fact that a parent is being relocated for work constitute a material change in circumstance? The answer may surprise you – but not necessarily. 

The Court of Appeals of Maryland has explained that a change in circumstances is material only when it affects the welfare of the child. A parent’s relocation in and of itself may not constitute a material change in circumstance unless one of the parties shows that it has materially affected the welfare of the child. Likewise, the passage of time, i.e. the child’s advancement of age and maturity, has also not been found to necessarily be material changes warranting a modification of custody. 

Material changes that may be sufficient to warrant modification include, among others, a child’s prolonged absence from school, a parent frequently relocating within a short span of years, a deterioration of the caregiver’s or the child’s mental health, or attempts by the caregiver to deny the other parent visitation to the detriment of the minor child. There are, of course, a number of other circumstances, including in some situations, moving and advancement of age, that may also be considered material changes if it is demonstrated that the change has affected the welfare of the child.

Moreover, the change in circumstance must be a change that has occurred since entry of the prior agreement or order. If the circumstances existed at the time that the current order or agreement was entered, the court is less likely to consider this a material change absent a showing that the situation has evolved such that the child’s welfare is impacted. 

The courts have explained that this standard provides minor children with stability and some finality by ensuring that parents are not rushing to overturn settled agreements and orders every time there has been a slight change. 

Best Interests of the Child

The second step in successfully modifying child custody is to show that the modification is in the best interest of the child. Generally, courts consider that the current custody arrangement is de facto in the child’s best interest, so it is on the moving parent to demonstrate that the change is for the benefit of the child. 

Maryland courts have articulated nearly half a dozen factors that weigh into analyzing what would be in the child’s best interest. A condensed list of factors comes from one of the leading Maryland cases, Montgomery County v. Sanders:

    • Fitness of those seeking custody
    • Character and reputation of the parties
    • Desire of the natural parents and agreements of the parties
    • Potentiality of maintaining natural family relations
    • Preference of the child
    • Material opportunities affecting the child’s future
    • Age, health, and sex of the child
    • Residences of parents and opportunities for visitation
    • Length of separation from natural parents
    • Prior voluntary abandonment or surrender

If you are interested in discussing whether to pursue a modification in custody, please reach out to the lawyers at JDKatz, P.C.