Modification of Visitation and Custody Orders: Child Support, Visitation, Parenting Time

What does the court consider when modifying child custody and visitation?

In all states, custody awards can be modified when modification is in the best interests of the child. However, tension can arise when balancing the welfare of the child and finality of a decision. In some states, child support may be reviewed after a certain period (for example, 3 years) without the necessity of showing a substantial change in circumstances. Factors considered by the court may include stability for the child, remarriage of a parent, parent's age, parent or child's health, substance abuse, child abuse, and the child preference.

What constitutes a "substantial change in circumstances" or "material change"?

A substantial change in circumstances can vary from state to state. A substantial change might include a permanent involuntary change in employment status, relocation as a result of a job transfer or change, significant financial change in the obligor or the recipient, change in co-habitation status, change in marital status, and a change in the ability of the custodial parent's ability to care for the child(ren). The court may also consider multiple changes in circumstances as being material, when one of the changes alone may not rise to that level. As it is in most family law matters, modification of custody orders and visitation is governed by state law. To ensure you have an accurate understanding of your state's laws, contact an experienced divorce lawyer.

Does the court have to decide who gets custody of the child(ren)?

The court will enter the final order of custody. However, in most jurisdictions the court looks favorably on custody agreements reached by the parents. The court will review any custody agreement to determine if it is in the best interest of the child(ren). Upon review, the court may approve or disapprove the custody agreement submitted by the parents. An experienced child custody attorney can assist you in preparing a custody agreement, which is acceptable to the family court in your area.

What happens if I need (or want) to move?

When a parent wants or needs to move, the court must determine whether the move constitutes a change in circumstances. If the ability to excise visitation rights is affected due to parental relocation, the court must decide whether the child may move with the custodial parent or if a modification of custody or altering visitation arrangements is warranted. To make this determination, the court considers many factors, including maintaining and developing a meaningful relationship with the child's noncustodial parent, each parent's ability to participate in rearing of his or her child, and protecting the best interests of the children.

What does the court consider when determining the "best interests of the child"?

The best interests of the child standard is comprehensive view of what is best for the child. No one factor is determinative. The court may consider a multitude of factors including the ability of each parent to provide for the child's needs (emotional and intellectual), the quality of the home environment, the ability of each parent to provide guidance to the child, stability for the child, and safety of the child.

Does custody affect child support?

Simply stated, yes. When physical custody is granted to one parent, generally, the noncustodial parent will be responsible for child support. How custody is divided can impact the amount of child support awarded. Additionally, failure of a noncustodial parent to exercise his or her visitation rights may result in an increase in child support obligations.

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