DIFFICULT TO CHANGE CUSTODY IN A MODIFICATION
Aug. 19, 2009
The Iowa Court of Appeals once again stated how difficult it is for a parent to change custody after a divorce. In the case of IN RE THE MARRIAGE OF MICHELLE SAWYER AND BRENT SAWYER Upon the Petition of MICHELLE SAWYER, filed on August 19th,
To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children’s best interests make it expedient to make the requested change. The changed circumstances must not have been contemplated by the court when the decree was entered, and they must be more or less permanent, not temporary. They must relate to the welfare of the children. A parent seeking to take custody from the other must prove an ability to minister more effectively to the children’s well being. The heavy burden upon a party seeking to modify custody stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons.
Or, in plain english, the parent who wants to change custody not only has to prove there has been a significant, unanticipated change that is harming the children but also prove they can take better care of the children. This is a very difficult burden to meet. It certainly is possible and has been done many times.
It is far easier to get custody in the original divorce or paternity action when both parents are presumed to be equally good parents, all other things being equal, than to try to change custody in a modification where the parent who wants to change custody starts off at a disadvantage.
2009 the Court ruled: