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Modification Frequently Asked Questions: Modifying Visitation

  1. Can I modify my visitation so that the kids live mostly with me?Maybe. In instances in which the parties truly split 50/50 time with the kids, a modification of the visitation would be governed by the “best interest” standard. Therefore, if the court believed a modification of parenting time leading to the kids being with one parent more time than the other was in their best interest, the court could do so. However, in instances where one parent has been awarded primary residential status, meaning the kids live primarily with that parent, the standard to modify is generally what we attorneys call an “endangerment” standard. Statute indicates that you cannot change visitation in a manner that also changes custody unless the parties agree or the primary custodian’s retention of custody presents a physical or emotional danger to the children. This is a difficult burden of proof to meet, meaning courts will likely truly require a showing of harm to the children before just changing residential custody. One can also seek a change in visitation that changes residence if the custodial parent has stated that he or she intends to relocate with the children. In such instances, the “best interest standard” comes back into play.
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