Modification of Custody and Visitation: Legal Standard Distinctions

In any post-judgment proceeding to modify orders related to custody and visitation of minor children, the Superior Court is guided by General Statutes § 46b-56 (a), which provides the court with broad authority to make or modify any proper order regarding the custody, care, education, visitation and support of minor children in dissolution actions. Tomlinson v. Tomlinson, 119 Conn. App. 194, 202, 986 A.2d 1119, cert. granted on other grounds, 295 Conn. 916, 990 A.2d 868 (2010).

Unlike motions to modify alimony or child support awards, however, it is not incumbent upon the parent requesting the modification of visitation only to demonstrate a “substantial change in circumstances” which would warrant such a modification.

Rather, the standard of law on a custody modification requires that the court find only a either a “material change” of circumstances which alters the court’s finding of the best interests of the child or a finding that the custody order sought to be modified was not based upon the best interests of the child. Malave v. Ortiz, 114 Conn. App. 414, 416, 970 A.2d 743 (2009). The end result, therefore, is a quick shift back to examine the effectiveness of the previous order, together with a snapshot of the present to examine whether the “best interests” analysis, presently applied, would make other custody orders more appropriate for the child.

Motions to modify visitation, on the other hand, require an even lighter judicial touch.  In ruling on a motion to modify visitation, the court is not at all required to find as a threshold matter that a change in circumstances has occurred. Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 433, 759 A.2d 1050 (2000); see also McGinty v. McGinty, 66 Conn. App. 35, 40, 783 A.2d 1170 (2001). Instead, “[i]n modifying an order concerning visitation, the trial court shall ‘be guided by the best interests of the child . . . .’ General Statutes § 46b-56 (b).” Kelly v. Kelly, 54 Conn. App. 50, 57, 732 A.2d 808 (1999). Accordingly, no showing of a “substantial change” or “material change” in circumstances is required to change a visitation plan, if indeed it can effectively be shown that the best interests of the minor child would be served by such plan.

Whether advancing or defending a post-judgment motion to modify custody or visitation, a divorced parent is best served by consulting with an experienced family law practitioner. Questions regarding this posting or confidential inquiries may be directed to Attorney Joseph C. Maya at 203-221-3100 or jmaya@mayalaw.com, for a free initial consultation.