When a Divorce or Paternity case is resolved, the settlement agreement, or Consent Final Judgment (CFJ), is signed by the parties and entered by a judge. Sometimes the terms of the CFJ need to be modified. In this service series, we will discuss the requirements to request a modification of child support and timesharing.
Child support: Both parties are entitled to request a modification of child support due to a change in financial circumstances, such as an increase or decrease in income. With regard to the decrease in income, a party may only request a modification if the decrease was involuntary. In other words, one may not accept a position which pays significantly less than what that party historically earned at a previous job. If a party does this, the Court will impute the income the party earned previously. In order for the court to modify child support, the change of circumstances must be substantial AND involuntary in nature. Situations that may warrant filing a Supplemental Petition for Modification of Child Support:
Significant change in income or ability to earn income of either party;
Health insurance becomes available and cost of insurance is incurred;
Child is emancipated or decrease in child(ren)’s child care expenses;
One party is not exercising the timesharing allotted in the Parenting Plan;
An increase in income for either party will offset the child support equation, thereby decreasing the child support obligation.
In order for the court to determine a substantial change in circumstances to warrant a child support modification, the new amount provided for under the Child Support Guidelines must be at least a 15% difference or $50.00 per month (whichever is GREATER) from the amount previously ordered.
For example, if a party was in a car accident, injured and cannot work or if a party is laid off and currently looking for new employment, a modification petition may be filed.
Timesharing: After a CFJ has been entered in a divorce or paternity case and a party would like to modify the timesharing schedule, a Petition for Modification must be filed with the Clerk of Court. To determine whether a timesharing schedule should be modified, the party seeking modification has the burden of proving a substantial change in circumstances has occurred since the previous Final Judgment. After overcoming this burden, the party seeking modification must then show that a modification to the timesharing schedule would be in the child(ren)’s best interest. The best interest of the child(ren) standard focuses on the factors below:
(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.
(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.
(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child’s friends, teachers, medical care providers, daily activities, and favorite things.
(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.
(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.
(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.
(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.
(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.
(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child’s school and extracurricular activities.
(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.
(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.
(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child’s developmental needs.
(t) Any other factor that is relevant to the determination of a specific parenting plan, including the timesharing schedule.
If you are considering modification of a timesharing schedule or child support, contact us for a consultation.