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Going Back to Court Over the Kids

July 8, 2014

Even after the fat lady sings, it’s still not over. Half of my business is made up of cases where parents need to change their custodial agreements and orders due to changed circumstances. The agreements that worked at the time of divorce won’t necessarily work even 5 years down the road when parents have moved, remarried, had more children, lost jobs and so on. Despite the fact that these life events are common and you would think parents would not have to go back to court over these issues, I find modifications to be the most contentious.

Child support is probably the most obvious reason to modify a prior order. Just today I represented a child support paying mother whose income is steadily decreasing. Although I am sure the father feels that she is intentionally scaling back to avoid additional support, the income was what it was and the Court lowered her support based upon her reduced income. Keep in mind that child support is generally not based on the needs of the child but on a percentage of the parent’s net income up to a certain point.

Another reason why parents end up back in court is because the child decides they would prefer to live with the other parent. After the child turns 12, the court has to interview the child in cases where the right to determine the primary residence is at issue. Although the court does not have to do what the child requests, the child’s input could play a role depending upon the circumstances.

In some cases, the right to determine the primary residence is not at issue but visitation is. When parents can’t agree on their own, they will come to us lawyers and the courts to handle visitation issues. For example, if one parent lives just far enough to make it very difficult to see mom for 30 days in the summer and train for high school football. Or when a daughter wants to spend Thanksgiving doing missionary work and some other time with Dad needs to be arranged. These examples are minor. What gets to be more serious is when mom or dad’s social drinking devolves into alcoholism or other life events that need to be dealt with.

Parents often move over 100 miles from the other parent. When that happens, visitation needs to change from the standard 1st, 3rd, and 5th weekends during the school year for parents that reside less than 100 miles apart to something more flexible or specifically tailored to the family’s needs.

The problem with all these common occurrences is that modification actions can cost quadruple what you paid in the divorce. Typically, divorcing parents just want the divorce done. They disregard a lot of advice from their lawyers advising them to be very specific and forward thinking in their agreements so that they anticipate future problems and therefore avoid costly litigation. But by the time the divorce is being finalized and the documents are being drafted, parents stop caring. They want it DONE.

The reason why these modifications cost so much more is that more than one hearing is needed to walk the court down the road of explaining the basis for the modification. One hearing for child support, one hearing to have the child interviewed, one hearing to argue over what school records are admissible, one hearing to force a parent to go to specific counseling or other parenting classes. This can go on and on and on depending upon the stubbornness of the other side. This of course only hurts children and destroys pocket books. Unfortunately for others though, it is the only way to make a change.

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