A common question I hear in my practice regularly – what is the likelihood that I can get a custody change? The likelihood of success in a modification action is more complex than it might appear at first.
The standard in Iowa for a modification of custody, visitation, or support is whether or not there has been a substantial change in circumstances. A change in circumstances is fairly simple to rationalize. It could be anything from a job change with a new schedule, a parent getting married, someone moving farther away than when the original custody schedule agreed to, or a breakdown in communication.
However, the key word that makes modifications actions less of a sure thing is the word substantial. Determining whether any of those prior examples rises to the level of a substantial change requires a nuanced assessment that must be carefully evaluated before filing a modification action.
While matters may seem substantial, courts are fairly reluctant to change an existing court order. This is for a few reasons: (1) Courts do not want to encourage people to relitigate issues that were already before the court and (2) litigation is very difficult on the children that are affected by it and Courts are reluctant to switch up a child’s routine and schedule that may have been in place for many years at that point.
When you likely should not seek a change
The substantial change must be continuous. For example, if a parent was laid off from work for 4 months, but it was expected that they would obtain the same job they had previously after those 4 months, the Court likely would not find that to be a substantial change that warranted a modification. This is likely because moving forward, there would not be any lasting change.
The same example could apply to a parent who was charged with an OWI. While this slip up may show that a parent has a drinking problem, if they are now meeting with a probation officer, maintaining sobriety, and getting themselves back on track, the courts may not deem that this person has a continuing drinking problem that would need to be addressed.
Prior to filing for a modification action, I encourage clients to also look at the situation at the time that their original custody or divorce matter was decided. I often hear clients state that their ex is never able to watch the children on Mondays and always has his mom watch the children. If he had his mom watching the children on Mondays when you agreed to give him every Monday originally, there hasn’t been a substantial change in circumstances, or any change for the matter, to warrant that he shouldn’t be receiving Mondays.
When you likely should seek change
A substantial change does occur when one parent’s income would change child support by 10 percent or more since the prior court’s order. A substantial change is also almost always considered when one parent becomes physically unavailable to take their parenting time for the foreseeable future. However factors that the Court will still consider even when a substantial change likely has occurred are the children’s age and the children’s preferences.
Bottom line
Pursuing a modification of custody, visitation, or support in Iowa is a legal step that requires more than just a change in circumstances, it demands a substantial and ongoing shift that truly impacts the well-being of the children or the fairness of the original order. Courts are cautious and deliberate in making changes, prioritizing stability for children and discouraging unnecessary litigation. Before moving forward, evaluate whether the changes in your situation meet the high threshold set by Iowa law. Consulting with a family law attorney can help you assess your unique circumstances and determine the best course of action for you and your family.
