The Modification of Family Law Orders: Changing Child Custody and Support

By: Hossein Berenji
: October 21, 2016

The Census Bureau estimates that most Americans move 12 times in their adult lifetimes. Nearly all of these relocations occur before age 40, and most of them are job-related. So, many of these moves create issues with a child visitation, child support, or spousal support award.

Many times, especially regarding child custody and visitation, the parents rely on informal "side agreements" to cover new situations, such as when the children spend time with each parent and where they are picked up or dropped off. That's both good and bad. It is good for parents to work out issues between themselves without going to court, because such co-parenting helps foster stability and keeps the conflict level to a minimum. However, these side agreements are completely unenforceable in family court. Moreover, it is not always easy to determine what the agreement was, because many of these understandings are nothing more than a string of vague e-mails or text messages. Almost inevitably, one parent wants to revert back to the way things were before or simply refuses to go along with the new "compromise," and the other parent has absolutely no recourse.

Fortunately, in most cases, the modification of family law orders is a relatively straightforward procedure. This is especially true if the parties have already informally agreed to the change and simply need to make the uncontested modification part of the official record.

Changing Child Custody Orders

In most cases, child visitation is a very delicate balancing act. Even a move across town makes the wheels fall off of many well-oiled machines, and a move to the other side of the county or the other side of the state can truly wreak havock. There are a couple of primary interests involved. First, in most cases, California law presumes that it is in the best interests of the children for them to have consistent and reliable contact with both parents. Typically, that means regular overnight visits supplemented by Skype or phone calls. Second, in both divorced and non-divorced families, children generally thrive on stability and routine. Unexpected events are often highly disruptive, especially among certain children. 

The bottom line is that most courts are eager to approve modifications that are in the best interests of the children and based on changed circumstances. The latter phrase is not really defined in the law, but generally it means things like:

  • Relocation: If the custodial parent and children move more than about 50 miles from the noncustodial parent, the court will generally adjust the visitation schedule accordingly, perhaps by ending a midweek overnight and replacing it with an extra weekend a month, as well as make provisions regarding travel arrangements and expenses.

  • Cohabitation: A new boyfriend is not changed circumstances, but a new husband who has a problem with alcohol or a history of violence does qualify as such.

  • Job: If the custodial parent has a new job that requires long hours or extensive travel, a change of custody, or at least more generous visitation, may be in the best interests of the children.

  • Wellness: If a parent overcomes an alcohol addiction, it may be grounds to liberalize visitation. Conversely, if a parent is injured or is diagnosed with a long-term and/or degenerative illness, a change of custody may be appropriate.

A motion to modify custody can also remove visitation restrictions. In many cases involving domestic violence, a judge will order supervised visitation at the home of a trusted friend or relative. If the alleged abuser completes a required counselling program and has no further anger issues, the court will often consider removing those restrictions altogether, or at least somewhat relaxing them.

Changing Child Support

Similar to child custody and visitation, a child support modification must be based on changed circumstances. Either party may request a modification at almost any time. The two biggest changed circumstances are:

  • Income: As a rule of thumb, any income change that exceeds 15 percent normally satisfies the changed circumstances requirement. Additionally, the modification must be based on a good faith change, because a parent cannot leave a higher-paying job for the purpose of reducing a child support obligation. Finally, the income change must be permanent, so a temporary layoff or year-end bonus do not normally justify a modification.

  • Expenses: Most parents would agree that child-related expenses vary greatly according to age. Unless the custodial parent is a stay-at-home parent, infants and preschoolers must go to day care, and the cost is often significant, especially for younger children. At the other end of the scale, older children often participate in expensive extracurricular activities and drive vehicles. Moreover, children of any age may have special educational, emotional, mental, or physical needs, and health insurance does not always cover these added expenses.

Typically, child support increases are retroactive to either the date of changed circumstances or the date the petition was filed, but in most cases, reductions are effective as of the date the order is signed.