Can I Increase Visitation With My Child As Opposed to Filing for Custody?
We have previously posted on the topic of filing a motion to change custody of minor children from parent to the other (a motion to “reallocate parental rights and responsibilities”). As was discussed in that post, the petitioning parent that wants to become the custodial parent has the burden to prove that there has been some substantive change in circumstances of the current custodial parent or the minor child (not the petitioning parent’s circumstances). This can be a rather high burden for the petitioning parent to meet, and if the child appears to be doing alright in the current situation, the chances of success are not that great, even if the petitioning parent’s home would be a better destination for the children. Courts are loath to shift the children around after custody has been established, and therefore, a change in circumstances is needed. Once the parent shows that there is such a change, he or she must demonstrate that a change in custodial status would be in the children’s best interest. If the parent cannot first adequately show a change in circumstances, there is no need to even evaluate the children’s best interest.
However, what if the petitioning parent does not want to obtain legal custody, but rather wants to merely increase visitation with the children? Although the motion would still be considered a motion to reallocate parental rights and responsibilities, the standard for modification of the prior Court Order is not as high. The petitioning parent need not show that there is any change in circumstances in order to prevail on a motion to increase parenting time (“Visitation”). Rather, all the petitioning parent must do is demonstrate that increasing visitation is in the child’s best interest. Essentially, a petitioning parent skips straight to the best interest issue, and never has to show that something has changed with the custodial parent or child. Motions to increase parenting time are common and are often granted, considering that increasing visitation would not fundamentally disrupt the children’s life and more contact with a parent is in most cases beneficial to the child.