Can You Change Your Mind?

Joint custody is an important factor that may have been overlooked during the divorce process. Circumstances in the future can change and it is best to prepare ahead of time for any eventuality. Changing the custody of children after a divorce can be relatively simple if both parents agree, though relocation can be an issue later. The court will rule based upon what is in the best interests of the child.

Kelly Chang Rickert is a family law attorney in Los Angeles. “Ideally, every family should have a mother figure and a father figure. It is what the legislature intended. Thus, barring any unusual circumstances such as abuse, domestic violence, or a cross-country move, the default arrangement should always be joint physical and joint legal custody.”

Robert J. Nachshin, Certified Family Law Specialist, Nachshin & Weston, LLP, Los Angeles, is co-author of “I Do, You Do…But Just Sign Here: A Quick and Easy Guide to Cohabitational, Prenuptial, and Postnuptial Agreements.” “Each state has its own guidelines. It is based upon the best interests of the child. California says it is the public policy of the state to ensure frequent and continuing contact with both parents after separation. The court considers which parent to be more likely to allow the child frequent contact with the other parent.”

“If contested, there must be a substantial change in circumstances or a strong reason why the custodial arrangement should be changed from one parent to joint custody,” added attorney Henry S. Gornbein of Gornbein Smith Peskin-Shepherd PLLC of Bloomfield Hills, Michigan, a firm exclusively devoted to family law.

“There are two categories of joint custody, joint legal custody, and joint physical custody. Joint legal custody gives both parents the authority to make decisions in areas such as medical, schooling, and religious instruction. Joint legal custody is granted in excess of 95 percent of all divorces in Michigan,” Gornbein said.

“Joint physical custody involves the time the children spend living with either parent beyond the provisions of a sole custody order. Courts are granting more and more joint physical custodial arrangements,” noted Gornbein. “Some type of joint custodial arrangement is happening, perhaps in as many as 25 percent or more of the divorce cases with children that I am involved in.”

There are additional variations of joint physical custody. Split custody concerns the custody of different children being awarded to different parents. Rotating custody switches the physical custody of the children and where they reside at different intervals such as monthly or annually. Birdnesting is an unusual arrangement where child resides in one home with the parents moving in and out at intervals like rotating custody.

Chang Rickert felt that joint legal custody is essential. “The non-custodial parent should always request joint legal custody. Legal custody is decision-making power. It governs decisions involving the health, education, and welfare of the child. As a parent, this is an important power and should never be waived.”

Gayle Rosenwald Smith of Philadelphia, Pa., is a family law attorney and coauthor of the book, “What Every Woman Should Know About Divorce and Custody: How to Keep the Kids, the Cash, and Your Sanity.” “I think it is best to always have joint legal custody. Otherwise, one parent may unilaterally decide and the other one is cut out. If there is a medical emergency, either parent should be able to sign if the other one isn’t available.”

“It is highly advisable that you both reach a parenting plan and sign a stipulated agreement,” Chang Rickert explained. “A judge will sign it. It has the force and effect as an order. It is highly recommended that you reach an agreement rather than put the fate of your children into the hands of a stranger.”

“Disappearing or relocating with the child is a major issue for many non-custodial parents. It is so much easier to stop a problem before it starts,” advised Rosenwald Smith. “If there is any doubt about one parent disappearing with a child, police are very reluctant to get involved without a court order showing that the parent who is requesting help has the right to the child.”

“If you have joint custody at all, most courts will not allow ‘legal or physical’ custody to become a factor in preempting a move,” said Nachshin. “If a parent has sole custody they will most likely be able to relocate without the non-custodial ex-spouse’s permission or consent.”

“Primary physical custody is a legal label in California, and should not be assumed in a joint custody situation,” cautioned Chang Rickert. “If established, the burden is on the non-custodial parent to prove that the move will be a ‘detriment’ to the child.”

The Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) has various rules on relocation according to Chang Rickert. “The state courts will usually do a UCCJEA conference, whereby one state will relinquish jurisdiction. Generally, the states will have comity with each other’s rulings. Basically, if the child has been in the new state for more than s months, it will be deemed the proper state of jurisdiction.”

Circumstances can and will change, particularly as children get older. It is suggested that covering the bases on custody for any possibility be done in advance, preferably with the mutual consent of both parents. An ounce of prevention is worth a pound of cure.


1. Document time with child.

Gornbein advised, “Document the time spent and if there is a pattern where more and more time is being spent with a non-custodial parent, then it might be advisable for the non-custodial parent to seek joint physical custody.”

2. Communicate any changes.

Chang Rickert added, “Always articulate a change of circumstance in order to modify custody.”

3. Keep all visitation.

Rosenwald Smith noted, “Custody cases are judged on the facts of each case. If a parent makes a great effort to go out of the way to make certain to have visitation, that goes a long way.”

4. Make a case for change.

Nachshin recommended, “Be diligent in gathering your facts and documents that substantiate your reason for wanting to change the existing custody arrangement.”

About the authorBruce McCracken is a seasoned journalist. McCracken has an MA in communications from the University of North Texas and resides in Irving, Texas.