When should I file a motion to modify?

Child custody and child support (and maintenance in the case of a divorce) will be subject to modification after the judgment based upon a substantial and continuing change of circumstances and the best interests of the children. However, a party should carefully consider his/her options prior to filing a motion to modify, which often turns into a long, drawn out, high conflict procedure.

A motion to modify child support seems simple enough.  There is a statute that says that if the presumed child support per the Form 14 would change by at least 20% there is a substantial and continuing change of circumstances for which a motion to modify may be filed.  However, additional considerations may need to be taken into account if the original child support amount ordered was not the amount given by the Form 14.  Furthermore, a motion to modify child support is often met with a motion to modify custody.

It is even more difficult to decide when it is appropriate to file a motion to modify custody.  There are certainly situations in which it is appropriate to file.   However, there is a presumption created by the original child custody order that said order is in the best interests of the children involved.  This means that a litigant in a motion to modify has a higher burden to prove that the schedule should change from that currently set.

An additional consideration is that children, unfortunately, are often placed in the middle of their parents’ conflict.  This happens in an original divorce or paternity case as well, but a motion to modify will often ramp up the conflict between two parents once again.  Furthermore, parents often rely on their children’s wishes as a reason to modify their judgment.  Therefore, children are often called into a court to testify, which effectively puts them in a situation of choosing between their parents.

Prior to filing a motion to modify, a potential litigant should consult with an attorney and carefully consider the pros and cons to re-opening litigation with a fellow parent.  There are certainly times when it is necessary and/or appropriate, but a motion to modify is not something that should be entered into lightly.