Custody and visitation issues are based upon the best interests on the child or children. Generally speaking a custody or visitation order is alway modifiable, however absent any factor that could effect the child or children, i.e. caretaker issues or the inability of the parents to stick to the visitation schedule, absent a change in circumstances the court having jurisdiction will usually not entertain a petition for change of custody/visitation.
If there is a change in circumstances alleged the court will look at a variety of circumstances, which are, generally, the same factors that are considered in an initial grant of custody or visitation.
The factors s court reviews in initial custoday and visitation orders or in modifications of orders include, but are not limited to:
the wishes of the child, the age of the parents (a lawyer is often appointed by the court to represent the children and the parents may have to pay for this lawyer), any substance abuse problems, findings of child abuse/neglect, the home environment, mental and emotional stability, one parent’s willingness to allow the child to develop a meaningful relationship with the other parent (includes the so-called parental alienation issue, the custodial parent moving away from the non-custodial parent, one parent’s unfounded allegations of neglect or child abuse towards the other), sibling issues (i.e. splitting up the siblings is often frowned upon), who was/is the primary caretaker of the child, and religious issues (i.e. the parents may have a dispute regarding religion, how is that dealt with to the best interests of the child?).
If a petition, action or pendente lite (interim) motion is seriously entertained by the court as being non-frivilous the court will generally order “forensics” or some kind of evaluation of the parents, this may include in court interviews with each of the parents by a court staff social worker/psychologist, home visits by child welfare agency officials and background checks on the parents. Sometimes when the status quo is stable a court may defer some of these questions if it appears that the parties are negotiating settlement in good faith.
Generally speaking an initial or modified custody/visitation determination requires many court appearances and it may take a considerable amount of time before a custody or visitation hearing is scheduled by the court. Parents and their attorneys are thus encouraged to work these issues out through an agreement which may be reviewed by the court. Such an agreement will need to be reviewed by the court and then “so ordered” or converted into an order to be binding upon the parents and enforceable in the future.