Can I change my old child custody arrangement from years ago?
Quick Summary
Yes, you can request a formal change to your 2015 custody order. Under the law, a court has the power to vary, rescind, or suspend existing parenting orders if certain conditions are met.
The situation
I am living in California and I am feeling quite overwhelmed by my current family situation. Back in June 2015, my ex-husband and I went through a messy separation, and the court issued a final order regarding how we would share time with our two children. At that time, the rules were very specific about the schedule and the contact we had with them. However, since that order was signed nearly nine years ago, our lives have changed completely. My daughter has started a new school programme, and my ex-husband has moved to a different city, making the old schedule impossible to follow. I have tried talking to him about making some small adjustments to the routine, but he refuses to cooperate and insists we must stick to exactly what was written in the original paperwork from 2015. I am worried about the extra labour involved in managing this, especially with the travel required now. Since the original decision was made so long ago under the old rules, I am unsure if I am actually allowed to ask a judge to change, cancel, or temporarily pause those old instructions to better suit our current lives. Can I still request a formal change to an order that was settled almost a decade ago?
Detailed Analysis
Even though your current custody arrangement was settled in June 2015, you are not stuck with it forever. The law allows for the modification of existing orders. Specifically, an order made previously "may, as of that day, if it is still in effect, be varied, rescinded or suspended"[1]. To 'vary' means to change the terms, to 'rescind' means to cancel it, and to 'suspend' means to pause it[1].
Because your situation involves a parenting order (an order regarding how much time children spend with each parent), the court will not change it just because you want a change. Instead, the court must be satisfied that there has been a "change in the circumstances of the child since the making of the order"[2].
In your specific case, you have mentioned two significant changes: your daughter has started a new school programme, and your ex-husband has moved to a different city. The law specifically notes that "the relocation of a child is deemed to constitute a change in the circumstances of the child"[2]. While your ex-husband's move is a change in his circumstances, the changes to your daughter's school and the resulting difficulty in following the old schedule may help demonstrate that the child's circumstances have changed enough to justify a new order[2].
It is important to note that while the law provides the mechanism for these changes, the final decision rests with a judge who will decide what is in the best interests of your children. The law does not guarantee that the judge will grant your request, only that you have the right to ask for it based on these changes.
Statutory Citations
Legal Citation: Divorce Act § R.S.C., 1985, c. 3 (2nd Supp.), s. 35.8 — Variation of orders previously made
"may, as of that day, if it is still in effect, be varied, rescinded or suspended"View Official Legislation →
Legal Citation: Divorce Act § R.S.C., 1985, c. 3 (2nd Supp.), s. 17 — Variation order
"the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order"View Official Legislation →
Legal Citation: Divorce Act § R.S.C., 1985, c. 3 (2nd Supp.), s. 17 — Variation order
"The relocation of a child is deemed to constitute a change in the circumstances of the child"View Official Legislation →
Important Legal Disclaimer
General legal information, not formal legal advice. The information provided on LawAsked does not constitute formal legal advice and creates no attorney-client relationship. If you require legal assistance, please consult a licensed attorney in your jurisdiction.
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