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Modification Of Court Orders
In the normal process of divorce (or separation), the court will issue orders pertaining to the custody and care of children. At the conclusion of the divorce, the court will make permanent those orders that require continuity. Typically the orders involve:
- Child Custody
- Child Support
- Parenting Time (visitation)
- Alimony (spousal support)
To modify an order of custody, one or both parents must petition the court that issued the original order unless a new jurisdiction has been established. The petition must cite evidence that supports the contention that circumstances of the child or one or both parents have materially and substantially changed since the entry of the original order. The petition must show:
- A modification would be an improvement for the child
- Both parents have complied in good faith with the dispute resolution procedure
- If no dispute resolution procedure is contained in the original order, the court will order the parents to participate in the procedure
If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.
If the issue before the court is a modification of the court’s prior decree pertaining to a residential parenting schedule, then the petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child’s best interest. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent’s living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.
Each order pertaining to the custody or possession of a child arising from an action for absolute divorce, divorce from bed and board or annulment must grant to each parent the rights during periods when the child is not in that parent’s possession or must incorporate such rights by reference to a prior order.
It is important to note that the court order(s) reflect a permanent condition until or unless there is a dispute, a request by one of the parties to adjust an order, or the natural expiration of the order. Requests to modify require the appropriate form to be filed with the court.
Child Support – set by a mathematical formula used throughout the State by its courts and judges. The amount of support can be adjusted higher (or lower) depending upon the changing circumstances of the child or either parent. Requests to adjust the amount of support generally go back to the court that issued the original order, and require a substantial change in circumstances to be accepted.
Child Custody – As you might imagine, this is not the court’s first rodeo, so they see most everything coming from far away. Should a parent wish to modify the court order, that parent would need to file the petition with the court that issued the order. This court has jurisdiction. Requests to change the original custody order must be made to the court that has jurisdiction, and must cite new facts that were unavailable to that parent in the original action, or that there has been substantial changes in circumstance. In extreme circumstances, where you look to change custody because the other parent has become unfit, you would use the form: Motion for Modification or Amendment of Prior Custody Order in Divorce Decree to Obtain Sole Custody of Minor Child Due to Unfitness of Custodial Parent
Parenting Time (Visitation) – A change in your child’s schedule can be agreed to by the parents without the approval of the court. You should consider having the court approve any changes, so that they become an official part of the custody order, because things change, and verbal agreements are just that – verbal, and difficult to enforce once the winds shift again (and they will). In cases where there is no agreement to alter visitation, the noncustodial parent must convince the court that an increase in visitation is in the best interests of the child(ren).
Alimony – this too requires a court order to change the terms. Adjusting the amount and frequency requires a material change in circumstances. Most modifications for alimony come from the payor of spousal support, and generally cite a drop of income or increased costs as a result of a life-altering event (decrease in pay, loss of job, medical expenses, etc.). Less frequently, a petition to increase alimony is requested when the receiving party learns of an increase in income of the paying party. These requests usually are based on the dependent ex-spouse being entitled to a portion of the increase due to his or her efforts during the marriage.
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