At Ciyou & Dixon, P.C. our clients frequently ask this question. In divorce or paternity cases, child custody or child support may be modified multiple times over the time of a child’s minority. The legal standards are effectively identical under the dissolution act or paternity act.
Child custody may be modified at any time if a party (mom or dad) demonstrates a substantial change of circumstances and that this change is in the child’s best interests. Several years ago, the Legislature relaxed the standard courts were following requiring a “substantial and continuing” change in circumstances, deleting the “continuing” component.
This change in the law roughly corresponds to the trend toward more joint physical custody or shared parenting time. To determine a substantial change based on the evidence that the moving party may present, a trial court is free and directed to look at the big picture, namely how the child is doing in school, his or her community, and the relationships with the parents.
In practice, Ciyou & Dixon, P.C. divorce attorneys have observed little change in how custody modifications are viewed by the courts even with the change in standard. Physical custody does not appear easier to modify. This reflects the general notion that change is destabilizing, even if only on a temporary basis.
Nevertheless, physical child-custody modifications do occur. At Ciyou & Dixon, P.C. we believe that there are two key concepts to recognize to maximize a child-custody modification or defend against it. The first is easy to misidentify: A change in a parent’s life does not generally equate to a substantial-enough change in the child’s circumstances to support a change in custody in the child’s best interests.
We observe this as an acute problem at times for parents who have had addiction issues. This causes the parent to lose physical custody. After the parent gets a grip on the addiction and is in a treatment and recovery program, he or she believes that this is a substantial-enough change in circumstances. But as a general rule, this is insufficient to carry the burden of proof to obtain a modification.
The child has continued on in life and established new relationships and roots in the other parent’s community. The focus is misplaced because the interests the court is to look out for are those of the child. The fact that a parent has changed for the better is laudable, but that is about the parent, not the child.
This does not mean that a substantial change has not occurred. The legal focus is off. What Ciyou & Dixon, P.C. advocates is to carefully help a client walk through each statutory factor and determine if (and how) this has changed with regard to the client. With these, if changes are at hand, including the parent’s recovery from addiction, a theme is developed for the custody modification trial.
Stated differently, any single change by itself is not enough. However, when a number of small changes are all developed and pulled together, it may well demonstrate a substantial-enough change in circumstances and that physical custody should be modified in the child’s best interests. This is what Ciyou & Dixon, P.C. attorneys help you do. In addition, there are a number of legal tools that may be deployed to assist with the burden to modify or to defend against it, which range from court-ordered drug testing to a custody evaluation.
Under the umbrella of child custody is parenting time. The non-custodial parent’s custody time cannot be limited or supervised unless a court finds on the evidence this will substantially impair the child’s physical or mental health. In some cases, custodial parents constantly interfere with the other parent’s parenting time.
In such cases, Ciyou & Dixon, P.C. attorneys are frequently consulted to determine an appropriate legal course. There are a number of legal tools of varying severity that may be deployed to mitigate or eliminate unreasonable interference with parenting time. The most basic is contempt ranging up to a permanent injunction prohibiting interference to forming a basis for custody modification.
Child-support modification is another type of legal matter that Ciyou & Dixon, P.C. divorce attorneys routinely address. Under the statutory provision, child support may be modified for one of two reasons. The first is where a party is able to show a substantial and continuing change in circumstances such that the current support order is unreasonable. An example may be found if a payer loses his or her job.
The other circumstance is where the current incomes of the parties and computation of support under the rules demonstrates a 20 percent change in the amount of support to be paid. However, a year must have passed before the last support order was entered. The policy behind this provision is to keep the parties out of court and from fighting, yet be sensitive to a big-dollar change in child support paid.
A current legal development that Ciyou & Dixon, P.C. family-law attorneys are involved with is the adoption of a revised set of Child Support Rules and Guidelines effective Jan. 1, 2010. These rules use a new mathematical model and tend to lower support in some degree for lower-income earners. The dramatic change is with non-custodial parents who may have high gross weekly incomes. In these cases, the application of the revised model increases the weekly support obligation dramatically.
Whatever legal issue you face in domestic litigation in a modification orientation, Ciyou & Dixon, P.C. divorce lawyers are skilled and knowledgeable. In addition, they are creative and understand that what is fair and equitable in one case may not be the same in a similar case. Finally, we are cognizant of the fact that a child’s needs change over time and what is in his or her best interests today may not be the case a little later in life.
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