A Change in Circumstance: Modification of a Child Support Order

Crazy Days

Sometimes my very spirited, stubborn, minds-of-their-own Darling Boys drive me crazy. Absolutely crazy. The whining, the sibling arguments, the unreasonable requests, the whining, the turning of a deaf ear to every word spoken by a parent, the asking for a particular food, but not eating even one bite once it is placed in front of him, the whining; all of this in the span of 1 hour. It's enough to make me want to run screaming from the house. But even then, at the end of the day (when they're fast asleep with the promise of a new day upon us), I can't imagine going a single day without seeing them, hearing them and knowing I have access to them.

The Brighter Side

Now don't get me wrong, my boys are also extremely sweet, caring, creative, imaginative, charming Darlings. I love the fact that they don't just go along with the flow just because everyone else is (This is a good trait to have as an adult. See Motherly Advice from August 20). I am proud of the thoughtful, interesting questions on advanced subjects that formulate in Darling 1's brain. I am amazed at how well and how quickly Darling 2 learns to do things just by watching his big brother or another bigger kid doing it. I adore the sound of their laughter, especially when they are making each other laugh.

DH and I have been blessed with these wonderful, feisty, hilarious, mischievous kids. Thanks to the breaks I get from my kids to get work done, have lunch with a friend or business contact, Girls' Night Out, date night, etc., I am able to face each unpredictable day of new adventures in uncharted territory every single morning.

Physical Custody

Many parents do have to go a weekend, a week or two, or even a month or more without seeing their kids because for whatever reason their marriage or relationship did not work out. Once a couple splits, when it comes to physical custody, the child(ren) from that relationship will have a custodial parent and a noncustodial parent, except for a joint custody situation. While there are some families who devise a system of joint custody, where each parent has 50% of the responsibility in caring for the child(ren) and both are considered custodial parents, it does not usually work very well from a practical standpoint and is not granted by the court in many cases. Generally, both parents retain legal custody of their child(ren), with some exceptions.

It's more common to see a situation where one parent has physical custody of the child(ren) and is referred to as the custodial parent. For instance, one frequently used custody arrangement looks like this: the custodial parent has physical custody of the child(ren), except for every other weekend, half the holidays, and one month in the summer, and the noncustodial parent pays child support to the custodial parent.

Child Support

Child support helps to pay for the child(ren)'s clothing, food, medical expenses, personal care items, educational needs, etc. Each family's custody plan and child support amounts are different and are specifically tailored to their individual needs and resources. The amount of support the noncustodial parent is required to pay to the custodial parent is based on salaries, expenses, and physical custody plans.

Modification of Support Order

Once the child custody plan and support amounts are agreed to by the parties and/or court, it remains in full force until and unless a modification of the support order is filed by a parent and granted by the court. A material change in circumstance for either the custodial or noncustodial parent such as a loss of a job, loss of medical insurance, an increase or decrease of salary, additional children to support, a medical disability of parent, change in educational or medical needs of child, etc. can trigger a need to seek a modification of a support order.

It's wise to seek the advice of an experience family law attorney should you need to file such a motion. There are several steps to take in order to request a modification of support with the court.

Step 1: Is there a Change in Circumstance?

A change in either parent's financial and/or employment status or a significant change in the child and his or her needs and expenses is usually the kind of change of circumstance to trigger a modification of a support order.

Step 2: Gather Supporting Evidence.

You need to obtain and document the change in circumstance. For instance, you may need to file a new income statement to show a decrease in income. Or you may have to get documentation showing the cost of a new ongoing medical treatment for your child, etc.

Step 3: Determine Which Form to File.

Each state court has different procedures and different terminology. Some courts may call the form you need to use a motion, others call it a petition. Some courts have standardized forms and others don't. You or your attorney will need to contact the court to find out the proper procedure and forms to use in pursuing a modification of a support order.

Step 4: File the Documents with the Proper Court

Again, contact your court of jurisdiction to check about the proper court with which to file your motion. Some states have general civil action courts, while others have separate family courts.

Step 5: Serve Other Parent with Modification Documents

It's the plaintiff's responsibility to serve copies of the petition, supporting documents, summons and other required paperwork on the other parent. The plaintiff is the parent who is seeking the modification. Once again, it's important to check with the court to make sure that you are using the correct method of service. For instance, some courts may require service by process (in person by someone other than you), while others may require it be done by mail. You may also have to serve your state's child support enforcement agency. So, be sure to check about that requirement too.

Step 6: Complete and Return a Proof of Service to the Court

A proof of service is a standard form where the person who completed the service attests that the copies of the court documents were in fact served upon the other parent.

The Best Interest of the Child

The most important thing is that your child is being provided for in the best way possible; that the child's basic needs are being met. There are times that child support payment amounts can become burdensome for the parent paying the support or the parent receiving the support. Life happens. Things change for good and bad. It's best to file for a modification, even if on a temporary basis, before you become delinquent in your child support payments (if you are the payor) or before you are late in paying the mortgage payment or medical expenses, etc. (if you are the payee).

The motion to modify is not automatically granted by the court, but will be carefully considered and decided based upon the current circumstances of the parents and child(ren). Ultimately the judge's order will reflect whatever is in the best interest of the child(ren) at that time.

The Importance of the Court

If you are on good terms with your ex spouse, you might be tempted to enter a non-binding oral agreement with him or her regarding the amount owed or changes in the amount paid for a certain amount of time, etc. However, it's vitally important to all parties involved to get the modification formally agreed to and recognized by the court. It will save you in the future if there are additional issues or problems regarding the support payments or order later.

The Scoop

The custody and support orders are never set in stone for the duration of the concerned child(ren)'s childhood. Instead, those orders can continually be changed and tweaked as parental circumstances change, the child ages and matures, etc. The petitioned changes are often in the best interest of the child(ren), and the courts recognize this.

In the coming weeks, I will address other custody issues, such as physical custody schedules, a parent moving out of state, etc. I would love to hear from you on these topics. Please drop me a line about this post, other posts or a topic idea. You can leave a comment below, or you can reach me through Twitter, Facebook or by email (through my About page above, left). On Wednesday, I will post tips on how to provide a positive and stable environment for your child while you and your spouse are going through a divorce. Over and out…

Anna

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Comments

[marie]

Hello Anna,

Thank you for your post child support modification. I am writing you to see if you can answer me or if you could post something more specific to my quesitons on getting a modification.

In 2004 (after trying to find my ex for 3 yrs) I finally was able to get an order in place for my son. My oldest son was at a camp so he want included in the child support order and t he child support agency ( I had to use them due to no money to get a lawyer) would not allow him to be added on to the order since he was away. So what happened when he returned was CSE would not go back to court to add him then he was getting old so he lost out. Now I am in the position with my youngest son that is getting ready to graduate high school in a year that I need more help with extordinary expenses but my order does nto mention extpordinary expeneses. Keep in mind that CSE would not even speak to me regarding my care before the court date, so I never was properly represented now I am finding out my son is not going to get the monies needed for pre-college help. Can I fight this? My son is a music major or will be, so he had to have alot of equipment, camps, braces, dental care and pre-college stuff. I am wondering will NC allow it since it is not in the order. I have never gotten a cola on the child support and he owes me 15k in back support. I heard that some are getting monies for college for the kids in court is that also likely. If you don't mind I would love to hear back from you if not thank you anyway.

[Anna]

Marie

Thanks for reading, but I can't give advice here. I would suggest that seek out an attorney/legal advocate in your state that could help answer your questions.

Thanks, Anna