Child Custody/Support Modifications
Child custody or support modifications can be made through formal agreement between the parents filed and approved by the court or through a petition/motion for modification made to the court. Castro C.L.A.N. can help you complete these documents on your own. Below you may find helpful information about child custody and support modifications.
Child Custody Modifications
Several special issues with child custody may arise. When custody determinations are initially made, they are generally determined based on what is in the children’s best interests. That is the standard which is followed in almost every state. Many states set out specific factors that must be considered when altering child custody for men or women.
Change in Circumstances
Changing circumstances may require a modification to the custody arrangement. Some special issues that may arise requiring a change in custody might be:
Children getting older and wanting to live with the other parent
If the child has been unable to adjust to their home, school and community
Child constantly runs away to non-custodial parent’s house and can’t get along with custodial parent
Child not getting along with their siblings and may be better off living with the other parent
Custodial parent remarries and the new spouse is abusive to anyone in the home
Remarriage of custodial parent with stepchildren who don’t get along with biological children which could result in emotional or physical harm
The mental and/or physical health of custodial parent becomes an issue
Evidence of substance abuse problems by either parent
Parent becomes incarcerated
Parent charged with felony child molestation
Parent killed in an accident or dies for some other reason
These are just some examples where it may be necessary to file for a change to the child custody marriage agreement.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is concerned with determining which state will have the original jurisdiction regarding child custody. If a child resides in a state for a period of six months or more, that state will be considered the child’s home state. Another state court does not have jurisdiction over the home state.
Congress has passed a law which prevents a parent from grabbing the child and rushing to another state in order to get a modification to the divorce custody support agreement. For example, Dad has divorce father custody of the child in their home state. Mom moves to another state and Dad sends the child to Mom for visitation. She runs to the court in her new home state to get a new child custody order. The new state decides that it is not bound by the law of the home state and grants custody to Mom. This is unlawful now that Congress has passed the Parental Kidnapping Prevention Act (PKPA). It creates a uniform standard for determining jurisdiction over interstate custody disputes.
All states have enacted a statute called the Uniform Child Custody Jurisdiction Act (UCCJEA) which sets out standards for when a court may make a custody determination and when a court must defer to an existing determination from another state. It controls disputes when custody is at issue between the parents in different states. This law generally gives jurisdiction to the state in which the child resides.
The purpose of the UCCJEA is to bring the prior Uniform Child Custody Jurisdiction Act (UCCJA) into compliance with the Parental Kidnapping Prevention Act (PKPA) and other federal statutes such as the Violence Against Women Act (VAWA).
The jurisdictional problems which arise in interstate custody disputes and the inability to have custody decrees enforced by other states became increasingly prevalent in the past few decades. Attempts to get the U.S. Supreme Court to resolve this matter failed. Congress enacted the PKPA which forced every state to give full faith and credit to any custody decree, no matter in which state the decision was rendered. It also prevented other states from modifying a custody order issued by any other state.
How the Act Determines the "Home State"
Many people do not know what a “Home State” is, however it is one of the most important factors in any child custody case, particularly if the child has moved out of state.
A child’s home state is defined as their legal residence for which they have resided for with a parent or with a “de facto” parent for a period of six months or longer immediately before the commencement of a child custody proceeding. If the child is less than six months old, then the place that the child lived from birth will be known as their home state.
The failure of the UCCJEA to clearly enunciate that the state in which the original custody decree was granted retains exclusive continuing jurisdiction to modify a decree has resulted in two problems.
Different interpretations of the UCCJEA on continuing jurisdiction have produced conflicting custody decrees. States also have different interpretations as to how long continuing jurisdiction lasts. Some courts have held that modification jurisdiction continues until the last contestant leaves the State, regardless of how many years the child has lived outside the State or how tenuous the child’s connections have become to the State. Other courts have held that continuing modification jurisdiction ends as soon as the child has established a new home State, regardless of how significant the child’s connections to the original decree State remain.
The second problem arises when it is necessary to determine whether the State with continuing jurisdiction has relinquished it. One court may improperly exercise jurisdiction because it mistakenly believes that the other court has declined jurisdiction.
Details of the UCCJEA
The UCCJEA vests “exclusive and continuing jurisdiction” for child custody litigation in the courts of the child’s home state. If the child has not lived in any state for at least six months, then a court that has “significant connections” with the child may assume child custody jurisdiction. If more than one state has “significant connections” with the child, the courts of those states must communicate and determine which state has the most significant connections to the child. A court which has made a child custody determination consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until that court determines that neither the child, the child’s parents, nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child’s care, protection, training, and personal relationships; or that court or a court of another State determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the State that initially made the child custody order.
To determine which state has proper jurisdiction to make an initial determination of child custody, the UCCJEA proceeds in the following order of priority:
a. The state which is currently the home state of the child, or was the child’s home state within six months immediately before the commencement of child custody proceedings if the child is absent from the state, but a parent or person acting as a parent continues to live in the state;
b. If no state has jurisdiction under 'a', then jurisdiction is proper where the child and at least one parent have a significant connection with the states (other than mere presence), and substantial evidence concerning the custody determination is available in the state;
If no state has jurisdiction under 'a' or 'b' above, jurisdiction is proper in any state having an appropriate connection with the child.
A state having jurisdiction under ‘a’ or ‘b’ above may decline to exercise its jurisdiction, and transfer it to another state if it is more convenient for the parties, or if one of the parties has engaged in misconduct necessitating a change.
An Example of Determining the "Home State"
For example, let’s say that Jake and Kristen reside in New York. They have a baby and when the baby is three months old, Jake wants to move the family to California. The child now lives in California for a year. Kristen decides she wants a divorce and wants to move back to New York where she grew up and where all of her family and friends are. For the purpose of determining the child’s home state, the court may find that California has become the new home state of the child, and that the court system in California now has jurisdiction over any custody matters.
To further complicate matters, if the California courts have jurisdiction, they can decide it’s not in the best interest of the child to break up the family and allow Kristen and the child to move back to Florida, because Jake would not be able to visit with the child. Even if Kristen is granted permission to take the child and move back to Florida, the court system in California still retains jurisdiction over the matter. All proceedings are heard in California; therefore, Kristen has to hire an attorney in California and incur travel expenses due to traveling in between the two states.
Parent relocation is one of the most common grounds for seeking a change in custody. The modification request may be submitted by a relocating parent who wants to take the child with them, or by a parent opposing relocation who wants the child to be placed with them.
If the relocation distance is small, there may not even be a material change in circumstances to warrant a modification to the existing child custody and visitation agreement. If one parent moves more then 100 miles from their original location, a modification may be required.
Disputes usually arise when the custodial parent seeks permission to relocate the child to another state. In determining whether or not to allow relocation, the court ultimately will base its decision on the best interests of the child. The court may consider a variety of factors which include:
The nature, quality, extent and duration of the child’s relationship with each parent.
The impact of the move on the child’s emotional development.
Whether the child’s relationship with the non-relocating parent can be preserved with alternate arrangements.
The child’s preference, if the child is of suitable age and maturity level to communicate one.
Whether the relocation will enhance both the relocating parent and the child’s lives.
The reasons the parent wants to move.
The reasons the parent opposes the move.
The degree to which the non-custodial parent’s access to the child will be impacted.
The court will also consider the feasibility of devising a new visitation plan which will still provide meaningful access to the child. The parents may reach a voluntary agreement regarding one parent’s proposed relocation. They must sign a written agreement that proves both parents consent to the relocation. The agreement will still need to be submitted to the court for ratification.
How the Court Decides to Allow a Move Out-of-State
The laws regarding a parent’s right to move out of state with their child vary in each state. Some states may restrict the right of the custodial parent if the non-custodial parent objects. In some cases, the primary issue will not be whether the move will be allowed, but how the parenting plan should be adjusted to accommodate the distance between the parents.
Parents Reason for Moving
Despite the differences governing the laws of each state, some of the key factors the court will take into consideration are:
The custodial parent’s motivation for relocating.
The time spent with the non-custodial parent now and after the proposed relocation.
The effect of the move upon the children’s physical, education, and emotional development.
The effect upon the non-custodial parent’s visitation rights.
Whether the relocation will enhance the general quality of life for both the parent seeking relocation and the child
To determine whether to allow the relocation of a minor child, the court looks at many factors. Most importantly, courts look to the reasons given for moving, the reasons given for opposing the move, and the relationship between the parties. A parent seeking to relocate must notify the other parent well in advance of a move. The timelines are specified in the laws of each state.
What are the Advantages or Disadvantages of the Move?
The custodial parent’s reason for relocation is of primary importance and should not be intended to deprive the non-custodial spouse of visitation, nor should it be in retaliation for a bitter divorce. The court may consider the following as advantages:
To be close to family and friends who can offer emotional support after a difficult divorce
Major health problems affecting the custodial parent or child and another location offers a better environment or specialized medical care that can only be found in a specific location
To pursue a significant educational or professional opportunity
Some Disadvantages may include:
The child’s close relationship with the non-custodial parent and the disruption of frequent contact between the child and non-custodial parent.
The child may not want to move away from his friends and his school where he has established a comfortable routine
A change in custody may be required forcing the court to decide if the children should be left in their home state or be allowed to move with the custodial parent.
In many states, when the parent with primary physical custody seeks to relocate, there is often a rebuttable presumption that the intended relocation of the child will be permitted. If there is an objection, the presumption may be rebutted by demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to the child.
There is no standard visitation schedule when long-distance parenting is involved. However, the courts usually grant the non-custodial parent extra visitation during school breaks, the summer months and holiday breaks.
Can Visitation with Other Parent Continue or be Restructured?
If the court believes that reasonable restructuring of visitation can preserve and promote a good relationship between the child and the non-custodial parent, which is a factor in favor of allowing the move. Restructuring visitation may involve providing more visitation time during the summer months and over the school break periods. In some instances, the child may end up spending more time with the non-custodial parent than what was outlined in the original agreement. The court may reduce child support to facilitate the visits. Some courts place the cost of travel on the parent seeking relocation.
If a custodial parent moves away with the child without providing notice to the other parent, they may lose custody altogether or even face criminal charges of kidnapping. Before any move is contemplated, the non-custodial parent must be informed of the impending move. An effort should be made to reach a mutually acceptable parenting plan based upon the proposed location of both parents. Cases that involve long-range custody can be very difficult to resolve. The court’s involvement can prove to be both costly and time consuming.
When the non-custodial parent moves to another state, the custodial parent may have to rely on the Revised Uniform Reciprocal Enforcement of Support Act to implement or ensure payment of child support. This Act provides the mechanisms by which a support order issued in one state can be enforced by the courts of another state.
Child Support Modification
Many people these days are having trouble either making child support payments or caring for their children on their existing child support, because of a change in their work or living situation. If you are paying or receiving child support, there may come a time when you feel the existing support order should be changed. How can you go about making that happen?
Parents Can Agree to Modify the Support
Your first step should be to see whether you and the other parent can reach agreement to modify the child support terms. If you can, you can just ask a judge to approve the change. This shouldn't be a problem unless the amount you agree to is way below your state's guidelines. In that case you'll need to explain why the agreement is justified and how the amount agreed to will provide adequately for the children's support. VERY IMPORTANT: Any agreement you arrive at with the other parent must be formalized. Many times we hear of parents who relied on informal agreements, where after some disagreement the parent who agreed to the informal agreement, changes their mind, and seeks enforcement of the original order. With no formalized agreement, they can do this and the original order will likely be enforced.
You Can Ask a Court to Modify the Support
If you and your ex can't agree on a change, you'll need to ask for a court hearing in which each of you can argue for the amount you think is appropriate. As a general rule, in order to get a modification you must be able to show that something about your circumstances has changed since the court made the existing order. Depending on the nature of the changed circumstances, the court may make either a temporary or a permanent modification. Examples of the types of changes that support temporary modification orders include:
A child's medical emergency
The payer's temporary inability to pay (for instance, because of illness or a temporary additional financial burden such as a medical emergency), or
Temporary financial or medical hardship on the part of the recipient parent.
A permanent modification may be awarded if:
Either parent loses a job or changes to a new job with significantly different income
Either parent remarries and the new spouse's income increases the household income significantly
The cost of living increases
Either parent becomes disabled
The child's needs change significantly, or
Child support laws change.
A permanent modification of a child support order will remain in effect until support is no longer required or the order is modified at a later time because of a new set of changed circumstances.
If you're the paying spouse and you are unable to pay your support because you've lost your job or your income has dropped significantly, make sure you take steps right away to get the support amount changed. Any support payments that you don't make become what's called "arrears," and there's no way to make them go away other than paying them. They can't be discharged in bankruptcy, and they can't be reduced by a judge retroactively. If your ex won't agree quickly to a change, then you should immediately file a motion/petition with the court. And if your ex does agree, get it formalized in a written agreement and have a judge approve it. If you don't, and your ex later has a change of heart, the original support order will apply and you'll be on the hook for whatever you didn't pay. Castro C.L.A.N. can help you formalize any agreements and fill out petition forms.
Providing for Ups and Downs in the Cost of Living
Some child support orders include a COLA clause, which provides that payments are to increase annually at a rate equal to the annual cost of living increase, as determined by an economic indicator (such as the Consumer Price Index). This eliminates the need for modification requests based solely on cost of living increases. If your child support order does not include a COLA clause, it may be a good idea to add one now. Below you can find helpful information on calculating child support in your state.
Types of Child Custody
Both Legal and Physical Custody should be established. Legal custody refers to which parent(s) will have the ability to make important decisions regarding the minor children's education, religion, health matters and any other important decisions. Physical custody refers to which parent(s) will have the children residing with them on a primary basis. Any combination of arrangements is possible. It is best for the parents to take into consideration the best interests of the children and the children's schedules. It is common for parents to have joint legal custody while one parent has primary physical custody. This type of arrangement ensures that both parents are able to play an active role in important decision making of the children while the children continue to maintain a stable home environment.
There are two types of legal custody:
Joint Legal Custody: In a joint legal custody arrangement, both parents are entitled to equal access to all information regarding their children's education, medical records and legal records. In addition, both parents have authority to make important decisions regarding the minor children's education, religion, medical and legal needs.
Sole Legal Custody: In a sole legal custody arrangement both parents are entitled to access to information regarding their children's education, medical records and legal records. However, only one parent has authority to make important decisions regarding the minor children's education, religion, medical and legal needs.
There are three types of physical custody arrangements:
Joint/Split Custody: In this custody arrangement, both parents share equal time with the minor children. This arrangement is typically only feasible when both parents reside in close proximity to one another or in the same city where the children's education and schedule would not be disadvantaged. This arrangement can entail having the parent's alternate time with the children every other week, every other month, or every half-week (one parent has the children 3 days one week and 4 days the following weeks). The idea is for the parents to each have the children a substantially equal number of days each year.
Primary Custody: In this custody arrangement the minor children's primary residence is with one parent. The other parent would receive reasonable visitation, typically every other weekend and potentially one overnight during the week. Visitation arrangements typically depend on the proximity of the parents. If one parent resides out of state visitation arrangement should be reasonable considering the affect on the children.
Sole Custody: In this custody arrangement the children reside with one parent and this parent has sole discretion over major decisions regarding the children. This arrangement is typically only chosen when one parent desires a limited role and involvement in the children's lives. Visitation can be arranged but is typically less frequent than under a primary physical custody arrangement.
The parties should discuss how the tax exemption will be divided for each child. It is common for parents with an even number of children to equally divide the children as exemptions. If the parties have only one child or an odd number of children it is common for the parties to rotate the exemption every other year. The parents should also consider who will receive the most tax benefit by claiming the minor children when making this decision. To ensure that the parents follow the agreement reached, they should each complete IRS Form 8332-Release (http://www.irs.gov/pub/irs-pdf/f8332.pdf) of Claim to Exemption for Child, which can be filed with their taxes.
Examples of Tax Exemption agreements:
The parties agree Parent A shall be entitled to claim the minor children for tax purposes in this year and every year thereafter.
The parties agree Parent A shall be entitled to claim Child A for tax purposes this year and every year thereafter. The parties agree Parent B shall be entitled to claim Child B for tax purposes this year and every year thereafter.
The parties agree Parent A shall be entitled to claim Child A in even numbered years and Parent B shall be entitled to claim Child A in odd numbered years.
Calculating Child Support
Each state has varying laws concerning child support. It is important to consider your state's requirements when calculating child support. Each state has its own way of calculating child support based on a variety of factors which can include income of the non-custodial parent, income of the custodial parent, number of children, other obligations, whether health insurance is provided, etc. In addition, some states handle child support matters in a separate action.
Many states provide a child support worksheet to help you determine the amount of support. If your state is not listed below, you should contact your local Clerk of Court to find this information.
Serving in the Federal District Courts, Second Circuit Court of Appeals, New York Supreme Courts in Manhattan, the Bronx, Brooklyn, Queens, Nassau, Westchester, Broome and Onondaga Counties, as well as the Appellate Division First, Second, Third, & Fourth Departments for Complex Litigation, Appeals, & Negotiation.
We are available to meet in Manhattan and Syracuse, New York. If you would like to meet outside of these areas, please contact us and we can arrange for a meeting place to discuss your matter.
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