While many people are divorced and never again see the inside of a courthouse, many others have issues arise that cause them to file for a modification of the terms of their divorce. The two most often seen modification filings are for child custody and child support.
Child Custody Modification
The Court will only modify custody if there has been a material change of circumstances, in order to serve the best interests of the child(ren). The Courts do not wish to get involved in the petty day-to-day disputes between parents such that, with each argument, a change of custody petition is filed. Typically, when balancing the equities of whether to modify custody, the Court will look to the following factors (of course this is not an exhaustive list and each case brings with it its own special circumstances):
1. The original placement of the child;
2. The length of time the children have been with the current custodial parent;
3. The child’s wishes;
4. The relative fitness of each parent;
5. Any abduction or defiance of legal process by either parent;
6. The quality of the home environment;
7. The parental guidance given to the child by each parent;
8. The financial stability of each parent;
9. The parent’s ability to provide for the child’s emotional and intellectual development; and
10. The presence of the child’s sibling in the home.
The Court will look at the above factors and determine whether a material change exists such that modification of the custody arrangement is necessary for the welfare of the child. You must remember that Courts are always loathe to disturb the status quo. As such, child custody modification petitions are not to be filed unless you are absolutely certain that your child’s best interests are not being served in the current custody situation.
The special case of “Relocation”
The Courts in New York, when the custodial parent seeks to relocate to a “far off” location with the parties’ child(ren), scrutinize very closely the reasoning behind such a request to relocate. The reasoning behind the policy is that the Court deems it to be in the child’s “best interests” to have both parents intimately involved in his/her life. Regular visitation with the non-custodial parent serves the child’s “best interests” and, if one parent is permitted to relocate, such visitation will likely be interfered with. In the case of the custodial parent seeking relocation, the Court looks to the following factors:
1. Each parent’s reasons for seeking or opposing the move;
2. The impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent (this should not severely handicap the non-custodial parents relationship with the child);
3. The feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements (if the Court does permit the relocation, the custodial parent will likely be ordered to pay for all travel expenses of the non-custodial parent and child in order to effectuate “meaningful” visitation); and
4. Any relocation restrictions included in the parties’ separation agreement.
Of course, the Court is free to consider any other factor it deems relevant based upon evidence and testimony introduced at trial. Once the trial is completed, assuming a settlement is not reached beforehand, the Court will issue a Decision. This Decision will either permit or deny the relocation and must set forth the factors the Court used in making such determination.
Child Support Modification
If you are paying or receiving child support, life may sometimes throw you a financial curveball. The Courts are aware of this and allow for either party to seeking either an upward or downward modification of child support.
If your child support order was based on a Court Decision After Trial, the standard is a substantial change in circumstances.
If your child support order was based upon a Stipulation of Settlement (incorporated but not merged into a Judgement of Divorce), then it must be proven that the agreement was unfair or inequitable when entered into or that an unanticipated and unreasonable change of circumstances has occurred resulting in a concomitant increased need or that the needs of the children are not being adequately met.
An upward modification will be made by the Court without specific examples of the increased expenses on the child’s behalf, rather than mere generalities (child’s growing up; economy tanked). Additionally, the Courts generally do not modify an agreement based only on a parent’s increased income unless the child’s current needs are not being met.
A downward modification requires the parent seeking a reduction in child support payments establish the economic basis for the modification. If you are seeking a downward modification due to loss of employment, the loss of employment must not have been due to your quitting or being fired for cause. Additionally, if you do lose your job, you should immediately begin seeking new employment and keeping a record of all applications and/or resumé submissions in order to demonstrate to the Court that you are making a bona fide attempt to secure new employment.
Whether you are seeking an upward modification or a downward modification, the road ahead is not an easy one. Your case must be presented in an organized fashion, demonstrating to the Court that the modification is a necessary one. Once the Court reaches a Decision, you will have thirty-five days in which to submit written Objections to the Decision. These written Objections are then reviewed by a Judge (child support cases modification cases are handled up Support Magistrates rather than Judges) to determine if the Support Magistrate complied with the applicable law. The Judge will either make the necessary changes to the Decision if he/she feels the Support Magistrate misapplied the law or deny the Objections, in which case the Support Magistrate’s Decision stands.
As always, an Appeal to the Appellate Division can be had of any adverse decision.