It’s not unusual for ex-spouses to want to change a prior decree respecting issues of custody and support. A party seeking to modify his decree must show a substantial and continuing change of circumstances. Those circumstances may include dramatic changes in income, relocation to another state, or problems relating to the proper care of his minor children.
Cordell & Cordell will ensure that, to the extent possible, our clients’ goals are achieved in light of the new circumstances while preserving those rights provided for in prior decrees. Select a topic to learn more:
Custody terms are binding, but they are not set in stone; it is possible to have them changed. In most states, the court order for a change is called a “modification.” Technically, you can pursue a modification at any time after the last order.
But remember that the party seeking the change (the “movant”) generally must show that a “substantial change of circumstances” has occurred since the entry of the original order.
Even if the court agrees that a modification is in order, it will not approve one without a substantial change. It would make no sense to permit one or both parties to subject the judicial system, the other party, or the children to a repetition of the first trial without evidence of significant new developments.
So, as a practical matter, motions filed within six months of your divorce are suspect at best. In fact, in some states the burden of proof is expressly greater if you file a motion to modify within one year of divorce.
Once a reasonable amount of time has passed, virtually all issues relating to your children, both custodial and financial, are subject to modification. The court must have a means of dealing with changes in circumstances.
Your behavior during the waiting period will be crucial to your chances for modification. Essentially, you should strive to be a model father, taking active, helpful interest in all aspects of rearing your children. If you are late with support payments or skip designated time with your children, you will damage your cause. Let your past actions make the case for future modifications.
Your model behavior will greatly enhance your case for modification. This is especially true if the mother of your children has not held herself to such high standards.
Bear in mind that your good behavior should include a sincere attempt to resolve any dispute or grievance amicably by correspondence, if possible, so you have a written record. Do not plunge into court with comparatively minor or premature complaints. The courts’ sympathies may lie on the other side of the courtroom if you otherwise appear to be reactionary.
If the amicable approach hasn’t worked, then a petition to modify may well be in order. In fact, unless an overriding health or safety issue exists, pause only long enough to ensure that a solid record of the violations exists. With this evidence in hand, you can make a strong case for modification.