When your divorce is finalized and the child custody and support order has been signed by the judge, you may feel as if the legal process is finally over. Unfortunately for some, that may not be the case. As children get older and changes in life occur, custody and support may need to be modified. Either party may request that the custody or support be changed, but they must show substantial and continuing circumstances that would warrant the court to grant the change.
The reasons to modify custody can range from relocation to allegations of neglect or abuse. No matter the reason, in Missouri, the courts require that children have frequent, continuing and meaningful contact with both parents, as long as it is in the best interest of the child. This means that courts in Missouri strive to keep children in contact with both of their parents on a regular basis as long as the children are in a safe, nurturing environment when they are with their parents. Modification of child custody will likely not be granted if it removes a child from one parent for too long or inhibits their relationship to grow and flourish.
The easiest way to approach a custody modification is to speak with your ex-spouse about the changes you are requesting. This task is significantly easier to achieve if you and your ex have an amicable relationship. If both parents agree to the changes, you can have a modified parenting plan prepared and filed with the court. If your ex does not agree to the changes that you are proposing, going to mediation might be a helpful avenue. A mediator will meet with both parties to try to work out a parenting plan that satisfies both parties. If this is not possible, then there will be a hearing in front of a judge where he or she will listen to evidence regarding why the modification is being requested and determine if it is necessary and if it serves the best interest of the children involved.
If there is a change in custody or in the financial situations of the parties, it is recommended that you contact an attorney as soon as possible. It may be in your best interest to file a motion to modify as soon as these changes occur. If you file them in a timely fashion, then the court can order that the change be retroactive to the date of service and make adjustments regarding child support if appropriate. If you wait and continue to pay child support, but then later request a child support credit, you cannot later be reimbursed or credited for the amounts you paid prior to filing a motion to modify. Whoever files the motion has the burden to prove the child support should be modified.
To change child support amounts, the change in circumstances must be so substantial and continuing that the amount of support ordered is unreasonable. Specifically, if there is a 20% or more change in the payment, there is prima facie evidence of a change in circumstances. This change in circumstance may come from one parent losing a job, getting a raise, or another life event that increases or decreases an individual’s income. The court will consider both parents’ financial resources and also evaluate the earning capacity of the unemployed parent. The court may impute, assign an amount that this individual is capable of making by considering his/her education, skills, previous jobs, etc. However, if one party voluntarily reduces his or her income in an attempt to evade child support, the court will impute income to the parent who is attempting to avoid paying support.
Kathleen Shaul is an experienced St. Louis family law attorney who is able to assist with your motion to modify custody and/or support. If you would like to get legal advice about your individual situation, call our team at 314-499-1476 to schedule a confidential consultation.