FILING YOUR OWN DIVORCE WITH EXISTING CUSTODY ORDERS
Child custody issues are usually resolved as part of divorce proceedings. But what if we separated and established custody orders several years ago and now want to file our own divorce?
As a rule, divorce and custody go hand in hand when spouses are parents because filing for divorce will address child related issues in order to protect the well-being of the children. When a divorce involves children, the court must make it a priority to make sure the children are taken care of emotionally and financially. When filing your own divorce, your divorce papers will address the issues regarding the children. These issues are commonly custody, visitation, and child support. The Initial Petition or Complaint for Divorce or Dissolution of Marriage alerts the court that a divorce is being requested and proper relief regarding the children must be decided by the court or agreed upon by the divorcing parents. When an existing custody order is in place, it is often attached to the Petition or Complaint for reference by the court. In most divorce cases it is ideal for the court to keep the existing custody orders in place, especially if it has been successful. The divorce papers can reflect the same arrangements in the existing custody order and also reference the existing order in the divorce papers.
Parents always retain the right to ask the court to change existing custody arrangements during the divorce and after their divorce is final. Judges don’t want to force custody arrangements when circumstances change, but neither do they want to move children back and forth between parents or interfere with existing parenting relationships without good cause. Changes that warrant a modification of custody must usually be material and substantial, so the question comes to whether the court grants a request for modification of the existing custody order as part of the divorce (that is if one is requested) or if the existing order is kept in place.
Questions of child custody can always be refracted through this single guiding principle. If a judge finds that it’s in the best interest of children to change the existing custody order, then the judge can order this. He or she will also change an existing custody order if the parties agree and it is also deemed to be in the best interests of the children.
