It is not uncommon for circumstances to change once a divorce decree has been granted. What was once a workable solution to custody, visitation rights and child support, can sometims no longer serve the parents or children involved. Is there anything that can be done about a divorce decree that is outdated?
Can the terms of a divorce decree regarding children be changed?
Yes, through a process called modification.
What Terms Can be Modified?
- Custody (conservatorship)
- Terms of visitation
- Child support
Which Court Can Modify an Order Regarding Children?
A request to modify custody, visitation or child support must be filed in the court which last entered an order regarding the children. Check with the court that entered the decree to see what procedures or forms may be required for modification.
Who Can File a Request to Modify an Order regarding children?
Generally, any person who is affected by the court order can request a modification.
What are the Reasons (Grounds) that a Court will Modify Custody of a Child?
The grounds for a change of custody are complex and should be discussed with an attorney. Some of the factors the court considers are changes in circumstances of the parties of the child, an emergency concerning the child, if the proposed change would be positive improvement for the child, and if a change would be in the best interest of the child.
Do I have to Wait a Certain Amount of Time Before I can File a Motion to Modify Custody?
Except in the case of an emergency, you must wait one year after the last custody order was entered by the court.
At What Age can my Child Choose Where to Live?
If a Motion to Modify is filed, a child 12 years or older may file an affidavit with the court naming the parent with whom the child wishes to live. However, this choice is not binding on the court because the court must also consider technical grounds and the best interest of the child.
How can I get Legal Custody if my Child is Living with me but the Other Parent has Court-Ordered Custody?
If the person having custody of the child is under the last court order voluntarily leaves the child in the possession of another person for a period of more than 6 months and the court finds that this arrangement is in the best interest of the child, the court may modify custody upon the filing of the proper motion with the court.
How can I Modify Visitation with my Child?
The court must consider some of the following and may consider all of the following:
- A material and substantial change of circumstances since the last visitation order
- The last visitation order is unworkable
- The person with custody move outside of state or moved without giving proper notice to the person with visitation rights before the move.
- A person with visitation rights repeatedly failed to exercise visitation with the child.
Specifics should be discussed with an attorney.
On What grounds will a Court Modify Child Support?
Child support may be increased depending on any change in financial circumstances of the parties or a change in the needs of the child.
States and counties vary as to the procedures to be followed for modification. The court that entered the decree for the divorce or child custody should be consulted as to their procedures and forms. While it is possible for individuals to do the paperwork and court appearances for their own modifications, be aware that courts have strict requirements for completion of the forms and time limits for filing the modification requests, that may be difficult for an individual to comply with. If the modification is important, consulting an attorney could save future problems.