Circumstances in life can change. At some point, you may need the assistance of a court to modify or enforce your prior order. The issues that typically end up back in court are child custody, parenting time, child support, spousal support, and contempt of court issues. Not all orders are modifiable though. Property divisions, for example, cannot be changed but may be enforced.
Often called post-decree litigation, modifying a prior order is commenced when one party files a motion with the court. The person filing the motion must have it served upon the other party. The motion is then set for a court hearing, usually before a magistrate. The lawyers will conduct discovery prior to trial to uncover the necessary facts and information about the case. If the case goes to trial, the magistrate will decide the case. If either party is unhappy with the outcome, they may file written objections (appeal the matter) to the judge who is assigned to the case.
When one party fails to comply with a court order, the other party can file a motion for contempt. The motion tells the court what the order is and explains how the other party is violating the order. The contempt motion asks the offender to appear and show cause why he or she should not be found in contempt of the court’s order. Contempt violations include, but are not limited to, financial violations (failure to pay child or spousal support, uninsured medicals, tuition or other related items), failure to transfer assets or titles to assets, and denial of parenting time. If a party is found guilty of contempt of court, they are subject to a jail sentence and/or fines. The guilty party can also be ordered to pay the other party’s attorneys fees.
Spousal support orders can be modified only if the divorce or dissolution decree authorizes the court to do so. The language used in the decree determines whether or not spousal support can be modified. If the court has retained jurisdiction to modify spousal support, it may only do so where the court determines that there has been a material or substantial change in the circumstances of either party that could not reasonably have been anticipated at the time of the original decree. A change in circumstance includes:
- ■ Altered economic conditions (i.e. an involuntary decrease in income);
- ■ Remarriage of the recipient;
- ■ Death;
- ■ Entering into a relationship in another state that would constitute a valid marriage in Ohio;
- ■ The ex-spouse is cohabitating in another relationship;
- ■ Payor spouse’s increased ability to pay;
- ■ Retirement
- ■ Other circumstances.
As with initial child support orders, a court begins a modification with the presumption that support will be set in accordance with the statutory schedule. The child support order can be modified if a party demonstrates a change in circumstances. If a recalculation of the child support worksheet results in a 10% increase or decrease in the child support amount, then it is automatically considered a change in circumstances and no other change need be proved. A substantial increase or decrease in the cost of child care or health insurance could also cause a change of 10%, even where income is relatively unchanged. The parent seeking the modification holds the burden of proof.
The need to modify a child support order can be brought about for many reasons, including:
- ■ Decrease or increase in earnings
- ■ The loss of a job
- ■ A change in the parenting schedule
- ■ Disability of one of the parents
- ■ Changes in child care arrangements or needs
The need to modify a parenting order can occur either when a parent wants to change their child custody status (shared to sole or sole to shared) or wants to spend more time with their child. However, a court will not modify a parenting decree unless there has been a change in circumstances. The change must be based on facts that have arisen since the last order or were unknown to the court at the time of the last decree. The change can occur in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree.
Assuming that a change does exist, the court must then find that a modification would be in the best interests of the child and one of the following applies:
- ■ The residential parent has agreed to such a change; or
- ■ The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent; or
- ■ The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.
An original custody trial is different from a trial seeking modification of custody due to the standards which must be met in order to get a change in custody. In the original custody action, each parent stands on equal footing with the other and the only question to be decided by the court is which parenting arrangement is in the best interests of the child. In actions to modify custody, the standard becomes more stringent because there must be a change in circumstances shown. The explanation for this standard is the court’s desire to maintain stability for the child.
It is common in custody modification cases for a guardian ad litem to be appointed. The court may appoint the guardian upon its own motion or the motion of either party. The guardian will interview both parents and the child and will conduct home visits (may be combined with the interview). The guardian will then make a recommendation to the court.
Relocation issues arise when the custodial parent, or one of the parents in a shared parenting situation, seeks to move out of the court’s jurisdiction. Ohio law requires a residential parent to notify the presiding domestic relations court of their intention to relocate the child. If the other parent refuses to consent, the parent wanting to relocate has the burden of proving to the court that relocation is in the child’s best interest.
The court will want to be satisfied that the harm of uprooting the children from their familiar environment and the other parent is outweighed by the benefits of relocation. There are many factors that the court must consider when making a relocation decision. Some of these include:
- ■ The distance
- ■ The relationship of each parent to the child
- ■ The reasons for the move
- ■ Which parent has been the primary parent
- ■ The parenting history
- ■ The proximity to extended family
- ■ The new proposed community