Child Custody: Modification of Orders
All child custody orders are modifiable. Even an order that specifically states that it is not modifiable, is modifiable. The courts will not enforce a non-modifiable child custody order, in that a non-modifiable order is deemed to be contrary to public policy.
Temporary child custody orders may be, but rarely are modified. Practically speaking, the courts require a very significant set of facts before it will modify a temporary child custody order. The courts are very reluctant to dedicate the courts resources to have multiple temporary custody hearings.
Permanent or post-judgment child custody orders may be modified if there has been a ‘significant change in circumstances’ since the last child custody order was entered. It is the burden of the parent who is attempting to modify the child custody order to bear the burden that the required changes have occurred. The changes that courts look in making this determination relate to the child’s health, education, and welfare. Different judges may evaluate changes of circumstances differently. Here also the courts have wide discretion.
If the child custody order sought to be modified is clearly designated as a ‘final’ order, any modification requires a ‘substantial change in circumstances.’ If the child custody order sought to be modified is not clearly designated as a final child custody order, a modification may be based on the child’s ‘best interests.’ The ‘best interests’ test is a lower threshold test than is the ‘substantial change in circumstances’ test. In other words, using the ‘best interests’ test, the court may consider any and all relevant factors in making the determination, whereas with the ‘substantial change of circumstances’ test, the court may only look to whether there has been a change in the facts and circumstances that existed as of the date of the last child custody order. If there has not been a change in the facts and circumstances, the court cannot modify the child custody order, even if the court believes that it would be in the child’s best interests to make a change in the order.
Move Away / Relocation
If one parent makes the decision to relocate the child’s residence, the child custody order, will necessary have to be modified in one way or another. A party will, of course, be able to relocate their own residence. The question will be whether that parent will be allowed to change the residence of the child. When a court makes the determination as to whether a parent may relocate a child’s residence, the court must assume that the parent will, in fact, move regardless of whether that parent is allowed to relocate the child’s residence. The court cannot make an order that provides for one custody order if the parent moves and a different custody order if the parent does not move.
The moving parent does not need to prove that the move is necessary. The parent opposing the move must show that the move would be detrimental to the child. If that fact is proven by the non-moving parent, then the court must evaluate all of the relevant factors to determine whether a relocation is in a child’s best interests or whether a change of custody to the non-moving parent is in the child’s best interests. In other words, the court must make a determination as to which parent the child shall live with after the anticipated move.
The court will look to a number of factors in making the determination relative to the move away including, but not limited to the following: extent of shared custody, willingness to place the children’s best interests first, reasons for the move, relationship of the child with each parent, distance of the move, age of the child, ability of the parents to cooperate and communicate, stability and continuity, relationship of the parents, and the child’s wishes.
Where parents have a working shared custody arrangement, the court must conduct a de novo hearing to determine whether a relocation of the child’s residence is the child’s best interests. If a child custody order had not been made or if the child custody order is not a ‘final’ order, the court will use the ‘best interests of the child’ test in making the decision on the relocation.
Child Support: Modification of Orders
Child support is calculated using a computer program (Dissomaster/X-Spouse) and taking into consideration a number of factors including, but not limited to: the parent’s respective incomes, child custody timeshare, deductions, etc. The courts are required to make a finding as to the amount of guideline child support. That sum will become the order of the court unless the court deviates from the guideline child support which the court can do for ‘good cause.’ Deviation below guideline child support may be, but rarely is, ordered. A court has the discretion to set child support below the guideline amount if the payor-parent is found to be a ‘high-earner.’ If a finding of ‘high-earner’ status is made then the court must determine the guideline child support level. After the guideline child support is determined the court is required to make a finding as to whether it is the child’s best interest to receive the level of child support generated by the computer formula.
Only if the court finds that it is not in the child’s best interest for the payor-parent to pay child support at the guideline level, will the court deviate from guideline child support on this basis and reduce the amount of the child support. Generally the amount of child support will increase if the payor-parent’s income increases but it will not necessarily increase to the guideline level if the amount of the parent’s income results in a finding of ‘high-earner’ status. The court has wide discretion in making the determination as to whether a parent is a ‘high-earner’ and as to whether to deviate from guideline child support. The income level that justifies a ‘high-earner’ finding may differ from county to county and from courtroom to courtroom within the Orange County Superior Court.
The court may also deviate for other equitable or economic reasons if it finds ‘good cause.’ ‘Good cause’ may be found when a child’s special needs are involved, when there are special education related issues, in situations where there was a deferred home award, where the recipient parent is not paying for his/her share of the expenses of the child in reasonable relation to that parent’s time share, travel expenses, and other circumstances where without a deviation the child support level would create an inequitable and unjust result.
All child support orders are modifiable if the circumstances warrant a modification pursuant to the family code. The parties may agree to any level of child support they choose. However, such an agreement is not binding on either parent or the court. A child support order that specifically and clearly states that it is non-modifiable is still modifiable. In other words, the parents could agree to a child support order that was below the guideline level and further agree that they would not change the support amount. The payee-parent could petition the court the following day for a modification of child support to increase child support to the guideline level and generally that request would be granted.
An agreement to pay child support in excess of the guideline child support amount is not modifiable downward to the guideline amount unless the payor-spouse’s income decreases and such a decrease constitutes a change in circumstances.
An increase or decrease in the income of either parent or the increase or decrease in the custody timeshare between the parents often results in a modification of child support.
The court does not have jurisdiction to retroactively reduce or increase child support relative to a period prior the filing of a request for modification of child support by a parent.|
Spousal Support: Modification of Orders
Spousal support orders are modifiable unless they specifically and clearly indicate that they are non-modifiable. If a spousal support order is designated as a non-modifiable order, the court loses the ability to modify spousal support upwards or downwards regardless of the hardship that has occurred or may occur in the future. A court cannot make an order for non-modifiable spousal support but parties may agree to such a provision.
The basis for a modification of a spousal support order is a ‘change in circumstances.’ The ‘change in circumstances’ test applies to both court orders and to agreements or stipulations entered into by the parties. The circumstances that are evaluated by the courts in determining whether an order should be modified, generally relate to the changes in the respective needs of each party and the changes in the respective earnings of each party. The ability to earn may also be relevant in the analysis. Unrealized expectations relative to earnings may also be relevant and may constitute a change in circumstances. The failure of a supported party to become employed or self-supporting may justify a modification of spousal support. Generally, the passage of time alone does not justify a modification of spousal support.
An increase in the earnings of one spouse by itself does not justify an increase in spousal support. For such an increase to constitute the basis for a modification of spousal support, the supported spouse must prove that his/her needs were not satisfied by the spousal support ordered in the judgment. In other words, if the amount of spousal support ordered in the judgment was capped due to the other party’s earnings and was not sufficient to meet the supported spouse’s marital standard of living at the time the judgment was entered, an increase in the income of the supporting spouse might constitute the basis for an increase in spousal support.
Marital standard of living is relevant to a modification of spousal support but it is just one factor and it is not dispositive. The marital standard of living is less significant with the passage of time.
Cohabitation of the supported spouse with a third party may constitute the basis for a modification of spousal support. There is a rebuttable presumption of reduced need when the supported spouse is cohabiting. It is not necessary for the parties to hold themselves out as husband and wife relative to a finding of cohabitation. It is the burden of the supported spouse to rebut the presumption of reduced needs if cohabitation is found to exist.
The supported spouse cannot be required to work beyond the date of normal retirement relative to payment of spousal support to the supported spouse.
An increase in the guideline child support may be a factor relative to reducing spousal support. The termination of child support may be a factor relative to increasing spousal support.