Can Courts Modify Custody Without a Request from Either Parent?

Parents and guardians who wish to change their child custody order typically must file a motion to modify. Additionally, the parent who files the motion, sometimes referred to as the moving party, must prove that there has been a substantial change in circumstances that impacts the child’s wellbeing.

Can a trial court choose to modify a custody order even when neither parent has filed a motion to modify? Not generally, but a recent Court of Appeals case highlighted a specific scenario in which this might occur.

Webster v. Devane-Webster

In this case, Father appealed various orders that were entered by the trial court. He asserted that, among other things, the trial court erred in modifying the custody order absent a change in circumstances and that the parenting coordinator did not act in the child’s best interest.

A permanent custody order was entered by the trial court. before the parenting coordinator submitted their report. Several days after the order was entered, the coordinator issued the report, which included several concerns about Father’s unilateral decision-making that affected the child. Upon receiving and reviewing the report, the trial court chose to modify the permanent custody order entered previously and granted Mother sole legal custody. Husband appealed.

The Court of Appeals pointed out that the lower court’s order was labeled as a temporary order, making it seemingly an interlocutory order. While interlocutory orders are not typically immediately appealable, the appellate court ultimately determined that the order was, in fact, a permanent order and could be appealed.

Appellate Ruling

In reviewing Husband’s arguments, the appellate court noted that trial courts have the authority to modify an order when a substantial change in circumstances has occurred that impacts the child’s welfare. Further, the moving party must prove this change has occurred. Because Father provided nothing for the Court of Appeals to refer to, it had to defer to the trial court’s judgment and not disturb its decision. Based on the parenting coordinator’s report, there was significant evidence supporting the lower court’s findings and conclusion that a substantial change had occurred. Therefore, the Court of Appeals found no error in the lower court’s decision.

Since Father did not provide a transcript in the record, and it is the appealing party’s responsibility to ensure the record is complete, the court dismissed his argument. The Rules of Appellate Procedure are clear, and failing to adhere to the Rules will lead to a dismissal. The lower court’s ruling was affirmed.

While the Webster case presented a unique scenario that most parents would not find themselves in, it does show that courts may choose to amend a custody order based on a substantial change in circumstances, even when neither parent has moved for a modification.