Usually, a court decision on child custody is valid until the child turns 18. But a judge can change the court decision, or the parents can agree on changes to child custody if their situation changes over time.
Has your situation, or your child’s situation, changed? This article explains possible solutions.
When can a judge change child custody?
A custody decision can only be changed if the change in a parent’s situation meets these requirements:
- It is unexpected.
- It is a big change.
- It requires a change in the child custody arrangements.
The change could be related to
- the child’s needs,
- the child’s situation, or
- the parents’ abilities to take care of the child.
When a judge decides that the custody arrangement must be changed, the decision will be based on the child’s best interests.
Here are some examples of situations that might justify a change in custody arrangements:
- One parent moves out of the country.
- One parent is sick and close to death.
- A parent who was very sick has recovered.
- One parent does everything to stop the other parent from seeing the child.
- The child wants to live with one parent or spend more time with that parent.
Did you know?
Some people can get free or low-cost legal services through legal aid. See Legal Aid: Do I Qualify? for more information.
As Children Grow Up
As a child gets older, a parent can ask a judge to change the visiting rights if the child’s situation has changed.
For example, the visiting rights that worked well when a child was two years old might have to be reconsidered when the child turns 10.
Divorce: Vocabulary Change in the Law
Since March 1, 2021, the Divorce Act no longer uses the terms “custody” or “access”. The law now uses the term “parenting time” to describe a divorced parent’s relationship with a child of the marriage. For more information, see our article Divorce: What Is “Parenting Time” and What to Do When Moving.
Parents Can Agree to Change Child Custody and Visiting Rights
Parents can agree to change child custody and visiting rights to suit changes in their situations.
Careful! A parent can’t decide child custody or visiting rights unless the other parent agrees. A parent who doesn’t follow a court decision can face serious consequences. The Service administratif de rajustement des pensions alimentaires pour enfants or “SARPA” (child support adjustment service) lets parents change support payments for a child under 18 without having to go before a judge.
Being Flexible About a Court Decision Without Changing It
Parents can agree to change child custody and visiting rights when the family situation changes. They can be flexible about applying a court decision without asking a judge to change it.
For example, a court decision says that Sylvia has to bring Andy back to his father on Sundays at 6 pm. But next Sunday, Andy wants to go to his cousin’s birthday party that will end around 8 pm. Sylvia and Andy’s father can agree that she’ll bring Andy back at 8:30 pm.
Careful! Parents should keep in mind that verbal agreements that make a major change to a court decision over a long period of time can give a parent the right to ask a judge to change the decision.
For example, a court decision says that Andy must spend 2 % of the time with his mother Sylvia. But for the past six months, Andy has spent 50% of the time with Sylvia. Sylvia wants to have the custody decision changed. So she goes to court to ask for joint custody of Andy.
Agreeing to Officially Change a Court Decision
Parents can agree in writing to change a court decision on custody and visiting rights. They can then ask a special court clerk to approve their agreement so that it has the value of a court decision.
The Homologation Assistance Service (HAS) can help parents make changes to court decisions. The service is offered at legal aid offices and is available to all parents, no matter what their financial situation is. For a reasonable fee, a lawyer will prepare all the documents and send them to the special court clerk. For more information on the HAS service, visit the website of the Commission des services juridiques, the organization that runs legal aid.
Changing Custody and Child Support Payments
Support payments for children are tied directly to the amount of time a child spends with each parent. These payments can be changed or cancelled if there is a change in custody or visiting rights. In some cases, the parent who received the child support might have to make the payments to the other parent. A government service called Service administratif de rejustement de pensions alimentaires pour enfants (child support adjustment service) or “SARPA” lets parents change the amount of support payments for children under 18 without having to go to court.