When parties go through a divorce or other family law case involving children, issues can arise in the future between them involving the children. This is due to many factors including changing situations with the parents or the children. Parents are often understandably upset and emotionally exhausted at the conclusion of their initial family law case, and many times do not want to have to go through another case filing regarding their children. Many times, the later filed action is not done by choice but out of necessity.
Oftentimes a parent will need to change or modify the prior orders they have between them and the other parent involving their children. One of the circumstances that could cause this to arise would be a change in residence of the other parent. If another parent moves, then orders put in place for visitation and pickup and delivery for the children will likely need to be changed to accommodate this. Another change could be if one of the parents has engaged in negative or criminal activities since the prior orders were issued. This could be an arrest or criminal conviction, drinking or drug abuse, or physical abuse of the children or a new spouse. This type of behavior would likely justify a modification of the prior order and even immediate relief in the form of a restraining order to bring this to the attention of the court.
When a parent has engaged in the negative behavior previously discussed, this can justify limiting or denying the possession of their children all together. In addition, if they are the parent with custody, this can justify filing an action to modify the parent who has the right to designate the children’s primary residence. These types of actions can become highly contested between parents and take considerable resources of the parties and the courts, so it is important to balance the benefits against the risks before filing an action to change custody.
Other grounds for filing an action to change a prior order regarding children would be a child or children’s desire to live with the other parent. While this is not a truly reliable form of filing for a change in custody, a court can consider a child’s wishes in where they want to live if they have reached a certain age. The choice of the child is not binding on the court, but the court can take it into consideration with all other evidence presented in a custody case.
A parent might also wish to change child support set in their prior order to either a greater or lesser amount than ordered. For example, a parent who has custody of the children might wish to increase child support upon finding out that the other parent has received a raise at work or changed to a better paying job. On the other hand, a parent paying child support might want to decrease support when they are laid off or forced to take a lower paying job. Either way, to establish an increase or decrease in child support, a parent is going to have to show financial evidence of the change in income or expenses of the parties. These documents would include paystubs, W-2’s, tax returns, financial information sheets, bills, and any other assets or liabilities of the parties. The financial condition of the parties will also need to be shown at the time the prior order was issued and at the time the new action was filed.
In addition to filing to modify a prior order of the court, a parent may wish to enforce the court’s prior order due to the other parent not following the order. This can take the form of a motion to enforce the court’s prior order regarding visitation, child support, or property division. Not following the court’s prior order is called contempt of court and is punishable by jail time, a fine, or attorney’s fees. As you may infer, this is a serious tool to use against a parent who willfully fails to follow the orders of the court as designated in a divorce decree or custody order.
When it comes to visitation, a parent who refuses to allow the other parent to visit with the child as ordered faces steep penalties for their behavior. The visiting parent will need to establish the failure of the other parent to follow the order through hard evidence, including communications containing refusals, police reports, photos showing the parent was at the other parent’s residence when visitation was to begin, and any witnesses who saw the visiting parent at the other parent’s house when the refusal occurred. The visiting parent will want to make records of each of the refusals so that when he or she goes to court they will have a running record of all the refusals which will persuade the judge to find the refusing parent in contempt.
For child support nonpayment, a parent who receives support needs to again keep hard evidence of nonpayment to support a contempt finding. This will include bank records, check stubs, state disbursement unit records, and any other agency records reporting that the debtor parent is in arrears on child support. The receiving parent will want to keep records for each month that the debtor parent does not pay child support to show to the court and establish a pattern of nonpayment. This will make it more likely that the court will order the nonpaying parent in contempt and either put them in jail or order attorney’s fees against them.
Finally, when it comes to property division, a former spouse may not have delivered certain property to the other spouse after the divorce or signed certain paperwork to deliver property as required by the divorce decree. This can include not signing to grant a residence to the other party or to divide a retirement plan. They can also include nonpayment of a sum of cash due or of a debt ordered to be paid by the other spouse. These are also contemptable actions that a former spouse can file for against their ex-spouse. Evidence for these offenses can include various types of financial documents, for example, deeds, titles, qualified domestic relations orders, bills, and bank statements.
As can be seen, there are various post-judgment actions to take when the prior order of the court has proven unworkable or is not being followed by the other parent or former spouse. A party will need to consult with an attorney to make sure that filing one of these post-judgment actions is not only the correct form of action, but will likely result in a party receiving the support or custody modification after a stamford divorce that they are seeking.