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Judgments after Divorce: Modification of Child Support or Custody

For better or worse, until your children are 18 years old and graduated from high school or, if the child drops out of school , until age 19. Either parent can at anytime ask for modification of child custody, visitation (until age eighteen), or modification of child support (18/graduated high school or 19). Obviously when the other parent asks the court for a modification of  an child support or custody order, you need good legal advice.

Motions for modification of court orders are fairly common in Family Court.

Modifying what, you ask, and why?  Most commonly spousal support, child support and / or custody / visitation orders are modified. Lots of other things are pretty much final once a judgment is on the books. But, for “good cause” based on a “material change of circumstances,” either side might ask the Court to change existing orders.

The result can be a sort of mini-trial that can, but does not necessarily, involve live testimony, financial records, testimony of a psychologist and all the procedural complications that go with trial (objections, argument, etc.). Don’t underestimate the importance of these motions.  “Post-judgment” has a sort of “afterthought” ring to it, but these motions are anything but. Just because they happen after the final judgment is entered doesn’t mean they can’t still be real life-changing events. The majority of move-away motions, in which one parent is moving far enough away that it’s going to change the logistics for visitation, for example, are made after the judgment is on the books.

How to tell if there is a change of circumstances that is “material” enough to convince the judge to change custody or child support?

It wouldn’t be fair to try to begin this list.  Someone might think the list is exhaustive when, really, the list is inexhaustible. You’ll definitely want expert advice on this subject. The list is so long and so complicated, there’s no way to tell much of anything without a really complete understanding of your situation. Some things are obvious: one parent is jailed, or dies, the other parent gets custody. Income of one party (or both!) changes dramatically? A change in guideline child support is very likely appropriate. One parent consistently forgets to put little Johnny’s homework in his backpack for midweek visitation? Hm… Important, yes, but not nearly as compelling. Remember, agreement is your best option. Sometimes you can work it out, and sometimes you can’t.  When you can’t work it out, a motion is going to be needed so the judge can weigh in.

Support Enforcement: when the other parent doesn’t pay support.

If the other parent knows about the order and has the ability to pay the support, it’s a crime not to pay it. Jail is a last resort, of course, but a resort nonetheless. Jail time happens if the accused is convicted of “contempt” and the judge thinks it’s appropriate. Usually the judge will figure it’s better to have the parent free to work, though. In trying to collect from a parent who is supposed to pay and has a “regular job,” i.e. gets a pay check, his or her pay check can be garnished using a special Court order, even if that parent’s employer is in another state.

It is important to make sure you file a motion to modify your child support if there is a significant change in your circumstances. I know of a case where the father was unemployed for years and filed nothing with the court to adjust the child support that he owed. Because of that, the father was responsible for the whole amount of back child support owed as it had originally been ordered.  The court does not have the ability to go backwards and adjust the payment account to take into consideration the fathers’ lost job. These days when so many people have lost their jobs, it’s important to know that.

A private attorney like myself can help with a lot of these functions. Sometimes, though, there’s nothing like the clout of a powerful government agency to get the desired support enforcement. The Department of Child Support Services (DCSS), a California state agency, can take steps to (a) suspend the offender’s driver’s license; (b) prevent the offender from obtaining or renewing a passport or (c) intercept a tax refund. The agency’s services are free.  The agency doesn’t officially represent anyone. If the payor is in another state, not to fret.  Each state that accepts federal funds (okay, that happens to be every state) is required to have an agency that is much like California’s DCSS.  You can enlist that agency’s help for free.  In fact, DCSS routinely enlists the help of the agency in the “sister state.”

Moving away.

A standard provision in any permanent custody order in California is “Neither parent may change the residence of the minor child or children outside the county without the written consent of the other parent or further order of the Court.”

In San Diego County we may see more than an average share of “move away” requests because of the large number of military service members.  Service members are rotated or transferred regularly. A service member may separate from the military and want to return “home” – i.e somewhere other than San Diego – and the other parent may decide they would like to stick around.  Or the inverse happens, where the service member is transferred and the other parent would rather stick around.

If you find yourself in this situation, don’t move away first and then hope for grace from the Court. I have handled more than a few cases when a parent did that –  moved first thinking they could get “forgiveness” after the fact, and then they ended coming to me to do damage control.  Moving is a big deal.  Make sure you do it the right way.  Get your ducks in a row long before you’ll need to move or, if you’re the non-moving parent, gear up to oppose the move if you want to change custody.  The parent who moves away (with the children) without first getting a Court order allowing the move never endears himself to the judge.

Whenever a “primary custodial parent” needs to relocate, they must jump through several important “hoops” to get permission from the judge, unless, of course, the other parents signs off (literally) on the move.

There are any number of reasons the parent needs to move: a new duty station assignment by the military, job-related relocation, remarriage to someone where that someone is transferred by her employer. Then, one side or the other files a motion. The court then will weigh a request by the “non-moving parent” to consider whether there should be a change of custody if the other parent moves, or a motion by the “moving parent” to grant an order allowing the move. Move away motions are the stuff of highest drama in Family Court. Often, the situation is that the move will drastically reduce the child’s contact with the non-moving parent. In fact, if it’s an interstate move, a drastic effect is the norm.

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