Key takeaways

• Custody agreements are rarely voided if the previous agreement is salvageable. Only dramatic change affecting a parent’s long-term ability to care for the child will usually justify voiding the agreement rather than modifying it.
• Courts determine whether to modify a custody agreement based on if there have been substantial changes since the original agreement and if a modification is in the child’s best interests.
• Only a court can approve a custody agreement, and only a court can void a custody agreement.

What voids a custody agreement?

It may sound strange, but a custody agreement is a contract. And like other contracts, custody agreements may become void or unenforceable in some circumstances. However, it’s more likely that a judge will modify a custody agreement rather than fully void the agreement. 

If you desire to change or nullify your custody agreement or are concerned your co-parent may seek these changes, read on. This article addresses what voids a custody agreement, how you modify a custody agreement and reasons a judge will change custody. It also explains when a custody agreement may be modified without parental consent and when parental rights may be terminated.

The only way to void a custody agreement is with a court order. 

Following your state’s custody modification laws, you can request a court void a custody order. Although the exact process varies from state to state, you typically submit a modification petition to a family court to begin. Unless all parties agree to the modification, the court schedules a hearing. At the hearing, you explain why you requested the change and offer evidence to support your reasons. Whether the court voids the previous order and creates a new one depends on the circumstances. 

A court may be more likely to void an existing order and establish a new order when the existing order is incompatible with the circumstances. For example, the court may void an order and create a new one if one or both parents:

• Die
• Move away
• Are incarcerated
• Are found to have abused the child

These situations may create such dramatic change that voiding the previous agreement makes more sense than attempting to adapt it to the new circumstances.

How hard is it to void a custody agreement?

How challenging it is to void a custody agreement depends on the circumstances. For example, if one parent dies, the other is typically entitled to take custody of the child. 

When the parent who died wasn’t very involved in the child’s life, getting a court to void the custody agreement in favor of the custodial parent may be as simple as offering the parent’s death certificate. 

But if the custodial parent dies, the circumstances may be more complex, particularly when you try to establish a new agreement. If the noncustodial parent:

• Lives out of state,
• Rarely sees the child, or 
• Regularly falls behind on child support payments

Someone else who has been present in the child’s life—such as a stepparent or grandparents—may be in a better position to meet the child’s needs. If the other parent nevertheless wants custody, their right to raise their child may trump even the best-intentioned non-parent’s request for custody. 

How do you modify a custody agreement?

At times, parents may wish to modify a custody agreement. The exact procedure to do so varies from state to state, but the principles are relatively universal. 

If the other parent agrees to the modification, the court generally approves it—unless it places the child at risk. 

On the other hand, if the other parent contests the modification, you may need to present evidence of the following at a court hearing:

• That the circumstances justify the change
• That the change is in the child’s best interests

Pro tip: If you’re wondering how to win a custody modification case, you must identify the circumstances that have changed and explain why those changes justify a modification under the law. Evidence to support your case may include documentation like photographs, medical reports and screenshots of texts or social media posts. It also typically includes testimony from the parent requesting the modification and others familiar with the situation.

Reasons a judge may modify a custody agreement

State laws use varying language to describe what justifies modifying a custody agreement. However, the person requesting the modification must generally convince a judge that significantly changed circumstances justify the modification and that the modification is in the child’s best interests.

Substantially changed circumstances

A substantial change occurs when a parent or child’s life has changed significantly from when the original custody agreement came into effect. A judge evaluates all facts relevant to custody when determining whether circumstances have substantially changed enough to justify a modification. Factors a court considers may include:

• The physical and mental health of the parents and the child
• Changes to the parents’ financial circumstances
• Changes to the living environment each parent provides
• Changes to the parent’s marital status
• Changes to the parent-child relationship
• Risky behaviors undertaken by the parents (e.g., excessive use of drugs or alcohol, allowing the child to be around dangerous individuals, etc.)

A court may also consider any other relevant factors in the circumstances. 

Pro tip: Determining the line between substantial and insubstantial change is generally a fact-intensive inquiry, and common sense also applies. The judge’s decision generally depends on how the changes affect the parents and child. 

Best interests of the child

The court must also conclude that modification is in the child’s best interests, which typically involves weighing factors such as:

• Each parent’s relationship with the child
• Depending on their age, the child’s wishes 
• The mental and physical health of the parents
• Any special needs a child has
• Maintaining a stable home environment
• The child’s other relationships with family and community members
• Each parent’s parenting ability
• The child’s activities in the school and community

Any evidence of abuse or domestic violence by a parent weighs heavily against placing the child in that parent’s custody, regardless of changed circumstances.

Modifications to custody agreements without parental consent

A custody agreement usually can’t be changed unless one or both parents request it. However, when the child’s life or safety is at risk, a state’s child protective services organization may investigate. If the organization issues a “founded” report of child abuse or neglect, it may seek custody modification without parental consent.

There are almost endless ways a state may modify child custody, including: 

• Temporarily or permanently voiding a custody order
• Imposing requirements on one or both parents but leaving the child in their custody
• Removing the child from one or both parents and placing them in foster care (states generally favor placement with the child’s relatives over strangers when safe for the child)

Regaining lost custody

Except in the most severe cases, parents typically have an opportunity to regain custody of their children. If you follow the requirements set by child protective services, the state may return your children to your custody.

However, permanency and stability are significant factors in weighing the child’s best interests when the state becomes involved. If the parents are unwilling or unable to provide a safe environment for the child, the state may pursue the termination of one or both parents’ parental rights to pave the way for the child’s permanent placement.

Termination of parental rights

Be aware that your parental rights can be terminated voluntarily or involuntarily. 

You can voluntarily terminate your rights only if it’s in the child’s best interests. Not wanting to pay child support isn’t typically in the child’s best interests.

Additionally, the state may terminate your parental rights if it concludes that, on balance, termination is in the child’s best interests. The state brings the case before a judge, who must agree with the state. You may defend yourself during the process and are entitled to be represented by a lawyer. 

How a lawyer may help

If you have a custody or parenting agreement, you likely know that a judge must approve your agreement to give it the force of law. You also need a judge’s signature to void or modify the agreement. 

Many online resources may help you create or modify a custody agreement. Even so, you may want to consider hiring an experienced family lawyer to take the burden of figuring out the law off your shoulders. 

A lawyer can help you understand your custody options and advise you on your rights and what evidence may be most helpful to support a change. They can guide you through drafting and filing your documents, ensuring they address the correct legal principles—like changed circumstances and the child’s best interests—and explaining why a court should grant your request. Your lawyer may also help you negotiate modifications, potentially bypassing timely and stressful courtroom experiences. If you must go to court, your lawyer will help you present your evidence and legal arguments to the judge.