Modification of Family Law Court Orders
After a family law judge makes court orders in a case, such as child custody, child visitation, child support, or spousal support (alimony) orders, one of the parties subject to those order may want to modify (change) them, if possible.
In family law, a request for orders (RFO) to modify an existing court order is common in child custody, child visitation (parenting time), child support, and spousal support cases.
Child Custody: A parent may seek to modify an existing child custody order when that order is no longer in the best interest of the child due to a change in circumstances since the existing order was issued. A request to modify child custody may include a request to change legal custody (sole or joint) or physical custody (sole or joint). For further definitions of child custody status, see Child Custody.
Note: The best interest of the child means the court will focus primarily on the child’s health, safety, welfare, and the preference for frequent and continuing contact with both parents, if possible.
Reasons for requesting modification of child custody orders, include: 1) a parent wants to move with a child, over the objection of the other parent, but the move is not in the best interest of the child, 2) a parent is unable or unfit to care for a child due to a substance abuse addiction, incarceration, or mental or physical disability, 3) the child visitation schedule significantly changes, and 4) the child wishes custody orders to be changed.
Child Relocation Requests: Child custody modifications based on a child relocation request, also known as child move-aways, is complicated and discussed separately at Child Move Away Request.
Mediation: A request to establish or modify child custody or child visitation orders requires the parents to attempt to resolve their disputes in mediation prior to presenting their case to the family law judge (except in emergency situations). See Mediation and Ex Parte Hearings for more information.
Note: A change in income of either parent is not a valid basis upon which to request a modification of child custody or child visitation orders. When there is a non-trivial change in a parent’s income or child visitation schedule, the proper request is for an upward or downward modification of child support, not a modification of child custody.
A Child’s Preference: There is no minimum age requirement that a child must meet before a judge will consider the minor child’s preference as to child custody or child visitation, so long as the child demonstrates sufficient age and capacity to form an intelligent preference as to custody.
Death of a Parent: When a parent with legal or physical custody of a minor dies, the surviving parent is automatically deemed to have sole legal and sole physical custody of the child or children, unless the surviving parent’s rights have previously been previously terminated. However, third parties, such as grandparents or stepparents, might be able to establish child custody or child visitation rights to the child of the deceased parent. See Grandparents’ Rights, Stepparent Adoptions, Guardianship, and Juvenile Dependency Hearings for more information.
Child Visitation (Parenting Time): A parent may wish to modify an existing child visitation order when the existing visitation order is no longer in the best interest of the child due to a change in circumstance since the existing child visitation order was issued. All types of child visitation orders may be modified, including fixed, reasonable, supervised, therapeutic, and more. For further definitions of visitation orders, see Child Visitation.
Common reasons for modifying a child visitation schedule include: 1) residential or employment relocation, 2) a parent’s ability to assist his or her child in the child’s education, 3) a parent’s rehabilitation status regarding child abuse, child neglect, or substance abuse issues, and 4) the child preference in modifying the schedule (See Child’s Preference).
Child Support: An existing child support order may be modified to reflect a non-trivial change in the parent’s income, visitation schedule, or health care costs of the child. For more information, see Child Support.
Spousal Support (Alimony): A party may want to modify (raise or lower) his or her spousal support obligation to reflect a change in circumstances, such as the payer’s ability to pay spousal support, the payee’s continued need for spousal support, or any other circumstances the court determines to be fair and equitable. For more information, see Spousal Support.
Note: Spouses may agree, in writing, to terminate the court’s jurisdiction (power) to establish or modify spousal support through a Marital Settlement Agreement (MSA), Prenuptial Agreement, or Postnuptial Agreement.
Modification of Orders with Agreement
If the parties agree to modify existing family law court orders they can usually do so by written agreement (stipulation) and without mediation (for child custody and/or child visitation cases), so long as the family law court approves the agreement.
Note: Parents cannot divest the court’s power to make orders regarding child custody or child visitation. Therefore, prenuptial or postnuptial agreement terms that attempt to impede the court's power to establish or modify child custody or child visitation is invalid and unenforceable.
Modification of Orders without Agreement
Temporary Orders: To modify a temporary order (interim order) the moving party must prove to the court that there has been a non-trivial change in circumstance since the issuance of the order sufficient to justify its modification. For temporary orders related to child custody and/or child visitation, the moving party must also prove that the new orders would be in the best interest of the child.
Final Judgment Orders: To modify child support or spousal support orders that were made part of a final judgment, the requesting party must prove there has been a non-trivial change in circumstance since the issuance of the existing order; however, for final judgment orders regarding child custody or child visitation, the moving party must also prove that the change in circumstance was significant (not just non-trivial) and that the new orders would reflect the best interest of the child.
Generally, the county of the state where family law orders are issued has exclusive and continuing jurisdiction to modify those order. It may be possible to change the jurisdiction depending on 1) the circumstances of the parties, 2) the type of orders sought to be modified, and 3) the location of the proposed jurisdiction. Jurisdiction issues in family law cases are complicated. Always eek the advice of an experienced family law attorney before attempting to change jurisdiction in a family law case.
To learn more about how to modify family law court orders, contact our divorce and family law attorneys today for a free consultation!
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Updated July 17, 2021