We have numerous prior blogs about the “changed circumstances” analysis employed by the Court in determining whether there should be a change in custody from one parent to the other. However, sometimes, litigants misunderstand the “changed circumstances” concept. Litigants often make the mistake of assuming that personal improvements in their lives will bring about a change in custody. However, the focus is not always on the “changed circumstances” of the parent but whether or not there are “changed circumstances” as to the welfare of the children to warrant a review and trial of the custody arrangements and whether such changed circumstances call for a change in custody. 

Recently, in the unpublished decision of Fischer v. Fischer, a recovered substance abuser incorrectly assumed that she was entitled to a custody trial and to a transfer of custody because she was a recovered drug addict and because she improved her financial circumstances. The Fischer litigation commenced when the mother of two children voluntarily transferred custody to the father as a result of her drug addiction. During the next four years, the mother filed applications with the Court seeking a change in custody. Ten months after father obtained custody, mother filed an application seeking a change in custody presumably because at that point she was drug free. At that point the Court found that no changed circumstances existed “as to the welfare of the children”.   Five months later, she filed another application for a change in custody which was also denied because the Court was “not satisfied that [the mother] demonstrated significant changed circumstances to warrant a change in custody”. Approximately sixteen months later, again the mother filed an application on the basis that her circumstances had changed because she was then drug-free and because her financial circumstances improved allowing her to be a stay-at-home mom. Again her application was denied and the mother filed an appeal.

 

The Appellate Court found that first, there was no change in circumstances as to the welfare of the children and second because there was no changed circumstances, the mother was not entitled to a custody trial. Specifically, the Appellate Court stated “Defendant’s life and circumstances have happily changed for the better, but that alone does not suffice given that the children have resided with [the father] for several years.” The mother’s changed circumstances were not enough to warrant a review of custody or a custody change because the children were doing well with the father and none of the changes alleged related to the children’s welfare. 

 

Litigants should always ask themselves before proceeding with a request for a change in custody if the “changed circumstances” relates to the welfare of the children. In order to get to a custody trial and prevail on a custody change, the answer must be in the affirmative.  Otherwise, the application will likely be denied.

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