Expert Beacon | Brad Micklin
Custody and child/spousal support terms are binding, but they are not set in stone. 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. The key is knowing when you have enough evidence to convince a court that a “substantial change of circumstances” has occurred since the entry of the original order.
It’s a case of timing, documentation and preparation. But above all, in the case of custody, it is a matter of putting the children’s needs above yours. In addition to material and substantial change, the modification must be in the child’s best interest.
Do ask first – it never hurts
You may have battled hard in court over the custody schedule with your ex and figure you’ll have to fight again to get it changed. But, don’t assume. Ask your ex or simply convey to him or her why you’d like to change the custody agreement. Maybe at the time of the divorce the traveling for your job didn’t allow for overnight stays. Maybe you’ve switched jobs and are home during the weeks. Present your situation and desire to your ex first. If negotiation in this manner isn’t doable, then you can take the next step.
Sure, you may want to change the custody schedule or child support payments to your spouse for your own reasons, but how will that affect the kids? Do they want to spend more time with you? Will reducing your ex’s child support affect their livelihood? As any attorney will tell you, children need to be the primary focus of any changes to a divorce decree.
If you are currently ordered to pay child or spousal support, make sure you do so in a timely manner. Nothing shuts down an agreed-upon modification faster than a missed or late payment. Also it helps your case with the court if you show responsibility and promptness with this end of the divorce decree.
Additionally, make sure you are in compliance with the other terms of the agreement. It may look like bad faith if you try to change an order yet you are only complying with a portion of it.
It’s simple: You want more time with your children? Behave like a responsible adult/parent. Don’t engage in activities that put your modification in jeopardy. And absolutely do not put any inappropriate material on Facebook, Twitter, Instagram or any other social network. It can be used against you in court.
Further, make sure what other people are putting on your pages are appropriate. While you might not put pictures of yourself drinking on your page, your buddy’s wall post about how wasted you were last night will not go over well with the court.
Do not be a contradiction
You say you want modifications to the custody agreement, but you are totally out of touch with your child. Before trying to get more time, prove you are an active and interested parent. That means coaching or at least attending sporting events, plays, and other activities your child is involved in, even if it’s not your custody time. Make the time you do spend with your child worthwhile. The court won’t want to give you more time if you’re not making the most of the time you’ve already got.
If you had an addiction that limited your parenting time at the time of your original decree, having support group logs showing you sought and received help to overcome your addiction will be vital to a modification of your custody or visitation arrangement.
As well, if you had a physical or mental limitation at the time your current divorce decree was ordered, medical records of your progress will be helpful to show the substantial and continuing change necessary for the court to modify your decree.
In many cases there will be a court hearing in which a judge will hear both sides of the motion to amend, and give a ruling. Don’t come to this hearing unprepared. Present yourself neatly and bring any supporting documentation that may help your motion to amend the divorce. Stay on point. Avoid revisiting all the elements of your divorce. Do not give the judge a list of complaints about your ex-spouse, or complain about things that do not relate directly to the part of the divorce you are seeking to amend.
Certainly negotiation is about give and take. Be prepared to work with your ex. There may be other options or a middle ground if you keep an open mind. Also, be sure to consider alternate dispute resolution like mediation and collaborative law, which can help resolve many contested custody issues.
You can modify a divorce decree. Just make sure the modification is just and be prepared with documentation that shows a significant change from the original decree that warrants the change. Do your homework. Be mindful of the kids and consult an attorney to guide you through the process.