Modification of child custody

Motion to Modidfy

            Let’s face it, divorces and child custody disputes are emotionally taxing, to say the least.  When the court case is over, rarely are both parties satisfied with the outcome and occasionally neither party is happy with the settlement or judge’s decision. Once a court makes a decision and the judgment is final, there is not much one can do to change the results, despite how unfair the ruling may seem to one or both parties.  However, with time children grow and change, parents change, schedules change and when these changes become of a certain significance a parent does have the option to petition the court to modify the original judgment of dissolution or child custody by filing a motion to modify.

            Most Missouri courts make judgments regarding child custody, child support and parenting time primarily by determining what would be in the best interests of the children involved. When circumstances change over the years, as they almost always do, contending with a court order that no longer appropriately fits your children’s needs is frustrating. Although Missouri law does not allow a change in a judgment simply because time has passed or because one parent doesn’t like it, the court will consider modifying a child support or child custody order if there is a substantial and continuing change in circumstances.

            When it comes to modifications of Missouri divorce decrees involving children or judgments of paternity, child support and child custody, there are two primary categories of modifications, child support and child custody/visitation. A desired modification of child support will require evidence pertaining to one or both parent’s income, a change in the cost of childcare or other financial factors. A desired modification in custody or parenting time encompasses factors such as school schedules, the child’s physical and emotional wellbeing, distance between homes, but ultimately will come down to what is in the best interests of the child.

Modification of Custody or Child Support: What are some common circumstances under which a court will modify a judgment involving child custody or child support? 

1.    An increase or decrease in one parent’s income, if the change in income is significant enough and deemed to be a long-term or permanent change, would likely cause a court to modify a child support order. Child support in Missouri is calculated using Missouri Form 14. Form 14 takes into consideration several factors, one of which is each parent’s income. If all other factors stayed the same, a substantial increase in one parent’s income could increase their child support liability to the other parent, and likewise a decrease in income could reduce their liability.

2. One parent has suffered a severe illness or sustained a serious injury. If a severe illness or  injury significantly impairs a parent’s ability to earn income, then it could reduce their child support obligation. Again, it will depend on how long that parent loses the ability to work.

   
   

3. One parent becomes unemployed or receives a criminal conviction. Generally, a court will reduce a parent’s child support obligation if they are honestly unable to pay, but not if they are able but unwilling to pay. If the parent is incarcerated, a court will not expect that parent to pay child support. Additionally, depending on what kind of crime a parent is convicted of, a criminal conviction or guilty plea could affect child custody. On the other hand, violent crimes or crimes involving drugs may cause a Judge to restrict or eliminate a parent’s custody or parenting time, or grant them only supervised visitation.

   
   

4. One parent wants or needs to move relocate. A parent’s relocation may make a current parenting plan impossible to execute, thus necessitating a change.

   
   

5. The amount of time a parent spends with the child or children has substantially changed. When one parent voluntarily chooses not to exercise their parenting time, and it is persistent, a judge may modify the parenting time.

   
   

6. One parent remarries or becomes a parent with a new partner. Depending on the particular circumstances, the introduction of a new partner or spouse could affect both child support or parenting time. Although Form 14 for child support does not consider a spouse’s income directly for the purposes of calculating their child support obligation, if a new spouse is paying a significant amount of expenses for one parent, then their child support could potentially increase.  

   
   

7. Parental Alienation or refusal of parenting time can cause a court to modify an existing custody agreement. If one parent is purposefully taking actions to turn a child against the other parent, a Court may punish that parent by decreasing their parenting time, if the judge believes such action would be in the best interests of the child.

   
   

8. A change in parental fitness can be grounds for a motion to modify. Issues such as substance abuse or neglect, if they affect the well-being of the child, can cause a court to modify a custody agreement.

How do I modify a custody agreement?

Modifying an existing family law judgment is best handled by an experienced family law attorney. If sufficient grounds exist, the first step is to submit a formal request to the court stating the reasons you believe a modification is necessary by filing a motion to modify. You must demonstrate to the court why the current agreement is no longer in the best interests of the child and that the changes in circumstances are likely to be long term or permanent. Again, it is highly recommended to hire an attorney if you intend to file a motion to modify, especially if you expect the other party to contest the motion.

            Next, the other parent must be served with the motion to modify by a sheriff or private process server, just as if it was a new lawsuit. Depending on the Court’s schedule, it can take several months for the court to receive and process a motion to modify, issue a summons, have the summons served, and for the court to schedule the first hearing. In the meantime, it is wise to use this time to gather and organize evidence you will need to prove your case in court. Just as in a divorce or paternity case, each party is entitled to serve the other party with discovery requests, such as interrogatories and requests for production of documents. If you are served with discovery requests you are required to respond within 30 days, unless you ask the court for an extension and it is granted.  It is imperative to be completely honest when completing discovery requests because the answers are considered to be under oath and can and will be used in court. Many parties, men in particular, tend to rush through these documents only to later regret doing so during a trial.

            If the parties cannot come to an agreement regarding the modification, a court will likely require both parents to attend mediation.  In nearly all Missouri courts, local court rules require parties to complete mediation prior to asking the Court to schedule a trial.  These rules exist to encourage and aide parties in settling the matter. If every case went to trial, the court would be backed up for years. An experienced mediator can help both parties see the issues differently often resulting in a resolution.

            If the issues in your particular matter are serious enough, at this point you can also file a motion for temporary custody. Temporary custody may be awarded if the parties agree or if there are substantial reasons why it is necessary, such as an emergency situation where a child’s safety could be compromised.  A motion for temporary custody will likely require a hearing, especially if the other parent opposes the motion.

            When you and your ex ultimately cannot come to an agreement, even after discovery and mediation has been completed, the case will be set for trial and the judge will determine whether or not, and how the prior judgment should be modified.

Standards for Custody Modifications in Missouri

As mentioned above, Missouri law requires a “substantial and continuing change in circumstances” for a court to modify an existing divorce, child custody and/or child support judgment. A Missouri court will weigh multiple factors when deterring if a judgment should be modified. Several of these factors include:

• A child’s mental and physical health, and wellbeing:  Will the modification enhance the child's emotional, physical, and educational needs?

• Parental fitness and environment: Does each parent provide a stable and healthy home environment?

• Parental cooperation: Do both parents actively encourage the child to have a meaningful and substantial relationship with the other parent?

• The child’s desires: At certain ages and levels of maturity, courts will consider the child’s wises.

When it appears your divorce, child custody, or child support order no longer fits your family’s circumstances, call attorney Robert Davis at the Men’s Center for Domestic Resolution in Pleasant Hill, Missouri at (816) 287-1530.  Our men’s rights family law firm is dedicated to helping men in family law matters to protect themselves, their children and their finances.

Attorney Robert Davis at The Men’s Center for Domestic Resolution is Kansas City’s Men’s Right Lawyer.