All is flux, nothing stays still. – Plato
Custody arrangements (whether decided by a court order or by mutual agreement of the divorcing parents) generally are based on the “best interests” of the child at the time of the divorce. A multitude of factors come into play in deciding what is best for a particular child in both processes, including but by no means limited to the developmental age of the child, the educational and extracurricular activities of the child, any special needs of the child, the availability of each parent, etc.
But all of these factors are subject to change over time. Provisions that serve the best interests of a child at one point in time are unlikely to continue to do so a few or many years later. Change seems not only likely but indeed inevitable. And yet, mental health professionals tell us that stability and predictability are very important for children, and particularly important given the uncertainty and insecurity created when a child’s parents divorce. How can these conflicting realities of change yet the need for stability be reconciled?
If a custody arrangement is the result of a court order, the legal term for the need for change over time is “modifiability.” The standard for modifiability of a court-ordered custody arrangement is similar in Virginia, the District of Columbia and Maryland. The party seeking to modify custody must establish two elements: (1) that there has been a significant change of circumstances, and (2) that the modification is in the best interests of the child.
However, if a custody arrangement is the result of an agreement reached by the parents, planning for future changes in a flexible way can be built right into the language of the parties’ agreement. Such a provision might include a number of elements:
- An expected time frame when revisiting the custody arrangements will take place;
- A standard or set of criteria to be used in deciding how the arrangements should change;
- The input of a relevant professional in crafting the specifics of the change.
A carefully crafted “modification” provision in a custody agreement can ensure that the child’s needs are met over time, as well as minimizing attorneys’ fees, uncertainty, and discord between the parents.