Changes in Child Custody: What is a Material Change?
In any action for divorce or paternity, custody of a child is made in the best interests of the child. The term “best interest of the child” has no set definition, which can cause problems in the long run. Although a lot of thought goes into choosing what is best for the child, the main two things are the showing of domestic violence and sexual abuse.
Domestic Violence
If either person is trying to get custody or visitation rights with a child and has been guilty of domestic violence against the other person they are going against in court, the courts must consider that. Rather, it's a family or household member; if the claim has more than 50% proof the courts will use it. Whether the child was injured or watched the abuse, the Courts will see it as a factor in making the choice of who gets the child.
Sexual Abuse
If there is an abusive parent in the picture, it's said that it is not good for the child to go to that parent. However, if the other parent is more abusive or has alcohol or drug problems, then the parent with less abuse might end up with the child. The same is true for any sexual abuse. If a person who wants custody or visitation rights with a child is a registered Sex Offender, the court may not give custody or visits of the child to them without somebody watching them. Sometimes, the Court will find that the offender poses no danger to the child. Sex offenders are treated the same way as domestic abuse. It's said that having the child around a sex offender is not good either. It is not in the best interest of the child to go to that parent or to have visitation in a home where an offender resides.
Material Change
Once custody of a child has been given, you can still fight for it. The custody order will go to a material change. Material change shows that your life is better than what they thought and that you can have your child. Most courts need to see proof of things that they didn't know in the first court hearing. They are going to need proof that your life is better just as you say it is and that you are the best choice for the child. This is to promote safety and you are moving forward for the children and block out what they once said about you. Therefore, the main thoughts in choosing the best life for the child in a material change are the same as when making the first custody choice.
In the end, what matters is the proof. Without proof, neither person is likely to win the case. The Department of Human Services can be of great help in getting the proof needed to win custody. DHS has more power to investigate than an attorney. Once any findings have been made, it becomes easier to obtain the desired result.
AUTHOR: EMILY REAR, STAFF ATTORNEY FOR CENTER FOR ARKANSAS LEGAL SERVICES