When Do I Need to Hire an Attorney to Modify My Custody Agreement?

January 25th, 2017

When Do I Need to Hire an Attorney to Modify My Custody Agreement?

            By:  Brittany E. O’Brien and Heather Rooney McBride


Missouri law tells us that in order to change a custody determination, there must be a substantial and continuing change in circumstances such that modification is necessary to serve the best interest of the child based on facts that have occurred since the prior decree or that were unknown at that time. See RSMo. § 452.410.1.  But what does that mean?


The reason you are wanting to modify your custody arrangement needs to be because of facts that did not exist at the time of your divorce or paternity action, it cannot be a short term or temporary situation, and the proposed change needs to in the best interests of the child(ren).  Examples of situations that would qualify for modification are that one parent moves, thereby affecting the child’s school district, travel time between parent’s homes, possibly the availability of services and extracurricular activities for the child, or if one parent gets a job that suddenly involves a completely different schedule (working weekends, or nights) that no longer makes the current custody agreement feasible.  Often modifications are necessary because the children get older, and the provisions that were made to accommodate their needs as an infant or toddler no longer work well for a teenager.


This does not mean that all families need to modify their custody agreements simply because a child is ten years older.  If the parents are able to work together to arrange a revised contact schedule that works for both of them and the child(ren), it may not be necessary to hire an attorney to obtain a modification; however, the agreement that the judge signs is an order of the Court.  This means that if the parents cannot agree on a change, and one calls law enforcement, the most recent written order entered by the Court will be enforced.


For example, if parents have a custody agreement in which their two children live primarily with the mother and visit their father on the weekends, but as the children get older and the parents jobs change the children are spending more time with their father than with their mother, that is a workable arrangement, until one parent gets upset.  In that situation, if nothing has been done to reduce the new agreement to writing and incorporate the new agreement into the Court’s order, the following could occur:  if the father remarries, and the mother doesn’t like the new wife being around the children and so calls the police when the children are at the father’s house, then the police will send the children to the mother’s house, even if this was a schedule the parents had been using for months, unless the new schedule the parents have been using for months is in the Court’s order.


Modification cases may be as simple as putting the revised agreement you have been practicing into writing and filing the revisions with the Court, or it may be more involved, but either way, it is important that you retain an attorney.  Substantial changes in custody or visitation arrangements need to be made part of an Order from the Court so that, if necessary, they can be legally enforced.  An attorney will ensure that all the necessary legal steps are followed in the process and that you have an enforceable agreement.

If you feel that the custody agreement you have is no longer working for you and your child(ren), please call our office to set up an appointment to speak with an attorney.  Our experienced family law attorneys will listen to your concerns and advise you as to the best legal path based on your specific situation.