The breakdown of a relationship is always a stressful experience but the emotional impact is heightened when there are children involved and spouses are faced with making a decision about how they intend to parent their children going forward or, worse yet, they are faced with having a judge make that decision for them. Once a parenting arrangement is at last in place (often many months and many dollars later) it may seem a bit disheartening to realize that your Final Order or your Final Agreement is not, in reality, actually final.
The reason a custody and access order is never actually final, however, makes perfect sense: custody and access orders are based on whatever is in the child’s best interests and we have no way of knowing, with any kind of certainty, what the future is going to bring. A parent may get transferred out of the area, illness may impact a parent’s ability to provide a child’s care, or a child may reach an age/maturity that gives him or her a much greater say as to where they will live and with whom. Decisions with respect to custody and access are to be based on the best interests of the child at the time of the decision and, clearly, what may be in a child’s best interests today may not be in that child’s best interests in the future.
You should not, however, get the impression that final custody and access orders are inconsequential or changed haphazardly. It is not as simple as having a change of heart or just disagreeing with an order. An application to vary a custody and access order requires the applicant to prove two things: first, that there has been a material change in circumstances; and second, that as a result of the change, the prior order no longer reflects the best interests of the child. Absent evidence of a material change in circumstances, the prior order will be considered correct as of the time it was made.
We all need to make the best decisions we can for our children and, unless something changes significantly, commit to making that arrangement work as seamlessly as possible. If something does change, however, the focus is once again on the best interests of the child and on how to ensure that that child’s wellbeing is best addressed in the changed circumstances.