What is a Substantial Change of Circumstances?

Posted: 19 July, 2022

Modifying a custody order is different than getting an initial custody order.  The initial custody order starts with the premise that both parents are fit and able to have joint custody of the children. If a parent would like primary custody, they would need to show the judge why primary custody is in the best interest of the children.

When modifying a current order, where both parents have joint custody, the parent will need to show the judge why the change would be in the best interest of the child.  You will need to show a “adequate cause”.   Adequate cause is an easy burden to overcome.    Adequate cause relates to having enough evidence that it would make sense to review the custody order.

When a parent has primary custody, the other parent will have a harder burden.  The parent must not only show adequate cause, but the parent will also need show a “substantial change of circumstances”. In the case of Ellis v. Carucci a modification of primary physical custody is warranted only when the party seeking a modification proves there has been a substantial change in circumstances affecting the welfare of the child and the child’s best interest is served by the modification.

Ellis v. Carucci was decided in 2007. Since this case the courts have spent a decade deciding what is a substantial change of circumstances.   Deciding if a change exists is left to the judge.    The judge is given discretion for deciding if a change has occurred.  But, the Nevada Supreme court has provided divorce attorneys with some scenarios that should be ruled a change of circumstances.

School grades – A child’s declining school grades would be a change of circumstances.  In the Ellis case a child’s documented slide in grades was considered a substantial change in circumstances.  Once the substantial changes was show the court then viewed the best interest facts and made an order for a new custody schedule.

New Employment, New Home, and Remarried – Several positive changes in your life would be a change.   In Pena v. Pena the father had gained stable employment, moved from an apartment into a new home and remarried another woman.   The court considered these multiple changes a substantial change that would warrant a discussion on changing the primary custody order.

New Employment Alone – New employment alone is not considered enough to change a custody order. The court in Bryant v. Bryant found that a change in employment, by itself, is not enough to change a custody order.

Gradual Improvements – The changes can be sudden or happen over time.  In Thompson v. Myers the court found the non-custodial parent’s situation had improved since the original custody order.  Several years had past since the original order.   A great deal of time has gone by and dad improved issues he had early on when he first became a single dad. The children were substantially older and wanted to spend more time with the dad.

Negative Changes – The change can be a positive change for the non-custody parent or a negative change for the parent who has primary custody.   In Hunter v. Hunter the court found a change existed because the parent who had custody was not providing appropriate care and supervision of the child.