Five Situations in Which Legal Custody can be Changed

Two different and distinct types of custody exist in divorce, paternity, and other types of family law proceedings:

• Physical custody
• Legal custody

Legal custody is the ability of a parent to make major life decisions on behalf of a minor child. Examples of major life decisions include:

• Education
• Healthcare
• Religion

Ideally, both parents in a divorce or similar situation share in making major life decisions for a child, share in the legal custody of a child. There can be joint or shared legal custody even in situations in which one parent has primary or even sole physical custody a child. There are, however, five more common situations that warrant a change in the legal custody of a child:

• Parent suffers from substance use disorder
• Parent is incarcerated and not readily available
• Parent is at a considerable distance and not readily accessible
• Parent has failed to maintain regular contact with child
• Parent suffers from a debilitating mental health condition

Parent Suffers from Substance Use Disorder

A common reason why legal custody is changed is when a parent is suffering from substance use disorder. This includes abuse of and addiction to mind-altering substances. The belief is that a person who abuses or is addicted to mind-altering substances is not in a position to be able to make major life decisions on behalf of a child or even to share in the making of such determinations.

Parent is Incarcerated and Not Readily Available

While a person forfeits an array of rights when incarcerated following conviction for a crime, that individual does not lose his or her right to be a parent. For example, an incarcerated parent oftentimes is entitled to enjoy parenting time with a child. Thanks to today's technology, virtual visits are quite readily available in many circumstances.

In some cases, an incarcerated parent who had joint legal custody of a child in the past may have that ability suspended during a term of incarceration. This occurs in many cases because an incarcerated parent is not readily available to discuss major decision-making matters with the other parent.

Parent is at a Considerable Distance and Not Readily Accessible

There are also situations in which a parent is at a considerable distance from the child and other parent and is not readily accessible. Distance alone is not the issue in the digital communication age. Rather, there typically must be an added element that the distant parent is not readily accessible.

For example, there are some instances in which a parent on active military duty may not have the most reliable or regular contact with the other parent. The better part of wisdom may be to alter the legal custody arrangement during the time period of a post to ensure the ability for timely decision making to occur on behalf of a minor child.

Parent has Failed to Maintain Regular Contact with Child

Another situation in which legal custody may be altered is when a parent who does not have physical custody of a child fails to maintain regular contact with that minor. A reality is that a largely absent parent may seem to appear out of nowhere and demand to participate in decision making for a child. The theory is that if a parent is not maintaining regular contact with his or her child, that parent should forfeit his or her ability to participate in making major life decisions for that minor.

Parent Suffers from a Debilitating Health Condition

Finally, there can be circumstances in which a parent is afflicted with a debilitating health condition that warrants an alteration in legal custody. Health conditions exist that render a parent generally unable to make or participate in making decisions on behalf of a child. These include both physical and mental health conditions or issues.

Issues surrounding both physical (or residential) custody and legal custody can prove to be legally complicated and emotionally intense. Consequently, when an issue involving child custody arises, a parent is wise to be as proactive as possible in seeking suitable legal representation. If you have any questions concerning changing legal custody, call the Law Offices of Peter Van Aulen at 201-845-7400.

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