Child Support Modification and Enforcement
There are many reasons that can necessitate a modification of a divorce decree even after it is final. In general, the court will require a significant change in circumstances to modify a previously entered final decree. This usually amounts to at least a 20 percent difference in the child support obligations, either higher or lower. Also, the previous order must have been entered at least three years prior to the modification. It is important to remember that the primary factor that the court will look at is the child’s best interest, not necessarily that of the parents. All of that notwithstanding, if there are extreme circumstances, the court has the authority to grant a modification at any time.
Other issues such as custody, visitation, and spousal maintenance can be modified as well in addition to child support payments. All of these issues can be somewhat complex, however, especially in regards to jurisdiction, and I would encourage anyone seeking a modification of a divorce decree to consult a lawyer before taking action. Here are some of the most common questions in regards to custody modification and enforcement:
Why would I change my court orders?
There are lots of potential reasons for this, but the most generic one (and the standard that is required by law) is a substantial and material change in circumstances. This could take a lot of forms, mental instability of a parent, a death in the family, loss of employment (or simply a lower paying job), kids being in school, domestic violence, etc.
The bottom line is, that custody orders can potentially last a long time, and the court is aware that life doesn’t remain constant for 18 years of childhood. If you have had a substantial change in circumstances and feel your court orders should be different, ask an attorney whether or not he or she thinks it will meet the legal burden.
What if we all agree?
First of all, if everyone is in agreement, you may not even need to modify the court orders at all. For most all court orders, visitation plans are only “absent other written agreement”, so if you can both agree on a different plan, you may not need to even get the court involved. If, however, you want to codify your agreement in the court order (and if you are at ALL concerned about the other party changing their mind I suggest you do), the process is also simple and can usually be done on the uncontested docket.
What if I already did a custody modification?
For the most part, the same standard still applies, with the additional caveat of having to wait 6 months between modifications. In extreme circumstances this can be waived, but for the most part it is a fairly hard and fast rule. This is something to keep in mind when doing a modification though, especially if you are trying to do one without an attorney. Occasionally I will see someone who agrees to a modification, then realizes it wasn’t what they thought, and I am unable to help them because their situation hasn’t substantially changed since the prior modification, or 6 months haven’t passed. You may consider trying to amicably resolve the situation outside of litigation, or simply wait for the period to lapse.
How do I enforce custody or visitation?
The primary mechanism for enforcing access to a child is through a contempt of court motion and potential jail time for the offending parent. Similarly to child support issues, if one party is willfully violating a court order, the other party can file legal action against the offending party to ask the judge to place them in jail for up to 180 days. Often it doesn’t come to that, because the simple act of requesting it is enough to get most people to comply with the order, however, in those rare situations where it isn’t, the judge can and does send people to jail.
Can I modify custody if I don’t know the other parties location?
As with all legal processes, proper service is necessary for due process of the law. This means you have to prove that you legally served them with your suit. Often people are aware of this and will make attempts to dodge service. In such situations, you can ask the court for permission to use substituted service, after you have exhausted all other options. If the judge agrees, you can utilize this method to get legal service and proceed from there.