Modification in family law is a document you file if you want to modify an order that has been put in place, such as a decree of divorce. It can modify anything from child custody if there is a change in the circumstances of who has the children to child support if you want to increase, decrease, or eliminate the payments to decrees that deal with property. You would file a modification of that order in the family courts and get a subsequent order with that modification as to what your wishes are. There are many kinds of judgments, decrees and orders that are modifiable in family law. Decrees and judgments entered in divorce, legal separation, nullity and paternity cases may often be modified in the future after the entry of the judgment. The types of orders that can always be modified include child custody and child support. These types of orders can always be modified because parents are not allowed to agree to “non-modifiable” orders for custody and child support under Utah law. The types of judgments and orders that can possibly be modified include spousal support and certain provisions where the court specifically “reserved jurisdiction” to make further orders or modify. Usually the parties’ divorce judgment or other order will specify whether the terms of that provision allow for modification. The types of judgments that cannot be modified include final determinations or agreements for property division.
How Does A Family Law Attorney Determine Whether An Order Can Be Modified?
There are two steps in the analysis to determine whether an order or decree from the family court in Riverside County can be modified, which are:
• Whether the issue is statutorily modifiable: There are only certain types of orders that are modifiable under the law. These include child custody orders, visitation judgments, child support, and usually spousal support or alimony. Unless a divorce or legal separation states differently, judgments for the division of community property is not modifiable (and it would be extremely rare for such a modifiable property judgment to exist.)
• Whether the terms of judgment allow for modification: The terms of the decree or order may specify whether it is allowed to be modifiable. For example, some parties agree to “non-modifiable” alimony orders that cannot be modified in the future even if a change of circumstances exists.
The legal basis that is necessary to modify an order is usually a change of circumstance. There are varying degrees of the change of circumstance required to allow the court to modify. For example after a “final adjudication” of child custody and visitation orders, such as after a child custody trial, the party wishing to modify the orders must show that significantly changed circumstances have occurred. In most other cases, simply changed circumstances will do. Some of the commonly used “changes of circumstances” include the following:
Child custody: Where a child has moved onto a new school because they are year older (perhaps closer to the non-custodial parent.)
Child support: Where either party earns more or less money than they did at the time the order was entered.
Spousal support: Where the needs of the supported party have increased.
Child custody: Where a parent wishes to move out.
Child support: Where a parent has a job contacts order that they are supposed to be abiding by and they are not, the court can impute income.
Spousal support: Where a support obligor’s income has decreased.
In all civil cases, including all family law cases (excluding contempt matters), the standard of evidence is by the preponderance of the evidence. This means that if it is “more likely than not” that the court should order a certain way, then it may do so. It is certainly wise to retain an expert in family law to help with your modification motion or if you are responding to such a motion. There are innumerable nuances that will apply to modification cases and having the help of an attorney that has handled these cases in the past extensively.
How Do You Change a Child Custody Agreement?
Changes may occur anytime by mutual agreement of both parents. To be legally binding, the agreement must be submitted to the court for approval. If the court does not approve the agreement, then it is not in effect and the parents are not required to follow it. Either parent may bring a motion to return to court and request a change in custody and/or visitation if there is a substantial change in circumstances that supports the parent’s claim that a change would be in the children’s best interests. If a court hears a motion for a change of custody and believes as a result that there may be a basis for the change, it may require a custody evaluation to be performed. How each parent presents their issues in the custody evaluation can be a critical part of these success or failure of the case.
Circumstances Under Which Custody May Be Modified
Under the laws in some states, to successfully petition the court for a modification, the parent must demonstrate two things:
• That there has been a substantial change in circumstances that warrant a change in the parenting plan or custody order
• It is in the best interests of the children to grant the modification.
A substantial change in circumstance usually means a substantial and permanent change. It cannot be temporary or be caused by something the parent voluntarily did. Some of the factors the court may consider in modifying a custody agreement include:
• Any difficulties in carrying out the current custody or parenting plan
• The physical and mental health of the parents
• The financial Circumstances of each parent
• The parents’ relationship with one another
• Any deliberate acts by either parent to prevent the other from spending time with the child
• The level of involvement of each parent in the child’s life
• The length of time the child has spent with each parent
• The type of living environment each parent can provide
While any one of these factors on their own may not be enough to justify a change or modification, two or more together may be sufficient evidence for the court to grant the change.
Modifying A Child Custody or Support Order
In most cases where the parents of a child are not in a relationship and do not live together, whether due to divorce or other circumstances, one or both parents will seek to define the support and custody arrangement for the child. In some cases the parents have an amicable relationship and can come to an agreement regarding child custody and support without court intervention. Regardless of the cordiality of the co-parent relationship, however, it is prudent for the parents to reduce the agreement to writing and file it with a court that has jurisdiction over the matter. This ensures that the terms are clearly defined and allows for the enforcement of the agreement should the relationship sour. In cases where the parents are unable to come to an agreement regarding their parental rights and obligations, either parent may file a lawsuit seeking custody or support of a child, and the court will ultimately issue an order determining custody and support. In either circumstance, it is important to include a provision that will allow for a modification of both the custody and support of the child.
Modifying Child Custody
As a child grows older circumstances change, and what may have worked best for a child or his or her parents when he or she was younger may no longer be practical or beneficial when the child is older. Situations that may necessitate a change to a child custody arrangement include a change in the school the child attends or an increase in a child’s needs due to situations such as illness or mental health or developmental issues. Additionally, if a parent is in violation of the current custody arrangement, it may be grounds for modification. Often as a child matures he or she may want to spend more time with one parent, and may ask the parent to request a modification. In some cases, a parent may have a concern regarding his or her co-parent’s ability to properly care for the child, either due to illness, increased job requirements or travel commitments, or other circumstances, and may request a modification. If the parents are unable to come to an agreement regarding a modification to the custody arrangement, they can petition the court for a modification and the court will determine whether a modification is warranted. As with all issues involving a child, the court will assess whether the modification is in the best interest of the child before deciding to grant it.
Modifying Child Support
Child support orders or agreements are often modified as well. If there is a change in the custody of a child, it may precipitate a request for a change in the support agreement or order, as the amount of time each parent is required to provide for the child will have changed. As a child grows the cost of caring for him or her may change, which is also grounds for modification. For example, there may be a decrease in cost when caretakers no longer have to be paid to care for the child, or an increase due to greater costs of activities or educational expenses. Additionally, a support order or agreement may need to be modified due to a fluctuation in the income or expenses of a parent. If a parent is no longer able to meet his or her support obligation, he or she can request a modification. Similarly, if either parent receives a substantial increase in income, his or her co-parent may request an increase in the support obligation. As noted above, a court choosing whether or not to modify a support agreement will always act in the best interest of the child involved.
How Do I File Contempt in My Family Law Case?
If there is an order that was entered in your family law case and the other party is not following the order, you may decide to pursue a contempt hearing. This is one method that individuals use to help enforce their order. Contempt of court occurs when one person is aware of a court order and willfully ignores or violates its mandate. There are a variety of actions that may result in a finding of contempt in a family law case. For example, if one party was ordered to pay certain debts in a divorce action and has failed to do so, he or she may be found to be in contempt. In visitation or custody cases, a person may be found in contempt if he or she refused to allow visitation that was provided in the parenting plan or he or she does not return the child to the other parent at the end of visitation. Contempt may also occur if one party fails to pay child support.
Penalties for Contempt of Court
A person who is found to be in contempt of court may face a variety of punishments. For example, he or she may be forced to pay a fine or face jail time. Additionally, in family law cases, the individual found in contempt may be required to take certain actions, such as returning the child to the other party or refrain from visitation. Many states differentiate between civil contempt and criminal contempt. Criminal contempt may carry a jail sentence with it. Many family law cases that find contempt only find civil contempt. This type of contempt is meant to help ensure that the violating party obeys the order in the future. An individual found in contempt of court may also be ordered to pay the other party’s attorney fees and court costs. Other possibilities include ordering a person in contempt to attend counseling sessions or a parenting class. In some cases, a finding of contempt can result in a modification of the court order, such as awarding the other parent custody of the child. For criminal contempt, the party being accused of contempt may be entitled to legal representation if he or she cannot afford an attorney and jail time is a remedy that is being sought.
Typically, a person must file a motion for contempt of court. This does not create a new case. The motion is filed in the same county and court where the original order was entered. The moving party may also be required to file a declaration or affidavit with the court. The judge usually has to sign an Order to Show Cause which will list the hearing date. The moving party or lawyer for the moving party may be required to complete this order for the judge’s approval. The moving party will have to serve the defendant with the papers in accordance with the applicable state’s rules of civil procedure. This may require in-person service by a deputy from the sheriff’s department or a private process server.
Both parties appear at the hearing and present their evidence and arguments. Some courts permit live testimony while others do not. The moving party has the responsibility to show that there is a valid court order in place, the other party is aware of the order, the other party willfully violated the court order and the other party had adequate notice of the contempt hearing and the violations claimed. The person who is being accused of contempt may present a defense. Common defenses to contempt of court actions are that the court order was no longer valid, the accused party did comply with the material terms of the order, the court order is ambiguous and subject to multiple interpretations or the statute of limitations for the alleged violation has passed. The accused party may present evidence to help bolster his or her case. Each party may be asked questions by the other party or his or her legal representative. The judge may also ask questions of the parties. The judge decides on the Motion for Contempt. This may occur immediately after the hearing. If so, the winning party presents a written order for the court to sign that should accurately summarize the judge’s ruling. In some cases, the judge may take the evidence and examine it. The parties may then receive a written decision from the judge on the matter.
A violation of a judge’s order will usually result in a finding of civil contempt, and the party will be sanctioned. Sanctions can include:
• Giving sole custody to the other parent;
• Reducing visitation;
• Requiring court-supervised visitation;
• Criminal charges/Jail time; and/or
• Monetary fines.
Keep in mind that failing to pay child support would also be considered a form of contempt of court, which means failing to keep up with child support can result in jail time. If you are unable to pay child support, be prepared to show your financial records to the court and file a petition for reducing child support.
Why Do You Need to Modify Your Child Support Order?
Most states have specific rules about changing a child support order. Typically, you must show a significant change in circumstances. A change in circumstances may include evidence that:
• A child’s needs have changed,
• A parent has significantly increased income,
• A parent is now disabled,
• A parent has lost his or her job, or
• There is a change in the child’s cost of living.
Some states also impose waiting periods before the court will change a child support order. If you have an existing support order, the lawyer will need to review the document. And, if there is evidence that the current order is no longer appropriate, bring this evidence with you.
What Should I Bring to a Meeting with a Child Support Modification Lawyer?
It is important to bring any evidence you have to your appointment. This information will help the lawyer evaluate your claim and provide accurate advice. The lawyer may want to see:
• The child’s birth certificate,
• Any existing child support orders,
• Income information, including check stubs and tax forms,
• Evidence of your changed circumstances (such as medical records, bills, and other increased expenses),
• Information about the other parent’s income, and
• Any relevant communications between you and the other parent.
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