The Legislature and Courts understand that orders may need to be changed in appropriate circumstances. Most often, parties seek to modify orders regarding child custody, child visitation, child support and spousal support.
At Aeschleman Law we can evaluate your particular case to determine whether your order may be modified to better accommodate your situation, and in many cases, your children’s needs. It is imperative to know that the court will not automatically adjust an order. Rather, if you require a change to an order, you must file a modification motion to obtain relief.
Child Support/Spousal Support
A court’s authority over child support, while a child is eligible for child support, is never terminated and all orders may be modified when appropriate. The Court will not modify child support unless a party can demonstrate a “material change in circumstances.” In the context of child support, the Court looks at a change in the parties’ financial circumstances as well as each parent’s respective timeshare with the minor child to deem whether a modification is appropriate.
Notably, in a situation where the parties previously stipulated to a below-guideline child support order, child support may be modified without a showing of changed circumstances. However, this does not hold true when the parties stipulated to an above guideline order. In such cases, the moving party still must demonstrate a material change in circumstances.
Likewise, both temporary and permanent spousal support orders are modifiable. Additionally, spousal support is modifiable upon a showing of a material change in circumstances. While a material change in circumstances is generally required, the parties may, in the alternative, stipulate to a modification of spousal support, which essentially acts as a waiver of the material change in circumstances requirement. The primary difference between modifying temporary and permanent spousal support is that when modifying permanent spousal support, the Court must weigh all relevant the Family Code §4320 factors. Conversely, with regard to temporary spousal support, the Court will generally only consider the supported party’s need and the supporting party’s ability to pay.
If you believe that the support order in place in your case is no longer appropriate, and that the support should be decreased or increased, contact Aeschleman Law for a consultation.
Retroactivity Re: Support Modifications
For parties considering whether or not to file a modification motion, it is critical to note that a new support order may not be modified until a request to modify the support order is filed. Therefore, even if the circumstances warranting a change have occurred, the Court will not make a change to the order unless and until a request is made to the Court. Therefore, it is imperative for a party to file a request to change the support order as soon as s/he becomes aware of the facts warranting a change of the order.
Child Custody/Visitation Modifications
As with support orders, a child custody and visitation order may be modified when the Court deems is “necessary and proper” and consistent with the child’s best interests. Notably, the Court retains continuing jurisdiction over child custody issues. This means that even if the underlying divorce case is finalized, including support and custody issues, the Court maintains the right to modify custody and visitation orders post-judgment. Moreover, parents have no authority to abridge the Court’s jurisdiction over custody issues, by stipulation or otherwise.
Where a permanent custody order has been made, the Court may only modify a child custody order if there is a “significant change of circumstances.” The public policy behind the changed circumstances rule is to ensure and promote the stability and continuity of custodial arrangements. Examples of a change in circumstances include, your child’s age (often times an order is made when a child is very young and has different needs from when they are older), a major change in the relationship between the child and one or both parents, a parent’s living situation, and any other factor that would affect the best interests and well-being of a child. Additionally, if one parent wishes to relocate, this will most likely a basis for a modification request.
Stipulated custodial arrangements present a unique issue. Some stipulated arrangements may constitute a final judgment while others may not be intended as a final judgment. Where the stipulation is not considered a final judgment, the custody and visitation orders may be modified without a showing of changed circumstances. On the other hand, if the parties intended it to be a final judgment, the changed circumstances rule will apply to a request for modification.
Lastly, there is also a difference between seeking a modification of custody versus timeshare. When a party is only seeking a modification of timeshare, the changed circumstances rule does not apply.
Custody and visitation modification requests require a detailed factual analysis of the current order with the current circumstances of your family. The custody lawyers at Aeschleman Law will evaluate your particular case for a modification and take the action necessary to bring the modification request before the Court.
Aeschleman Law is located in San Jose and serves Santa Clara, Alameda, and San Mateo Counties. Call us today for an initial consultation at (408) 724-8930. You may also contact us by filling out the form on the bottom of this site.