|
MODIFICATION OF CHILD CUSTODY |
|
An action for modification of visitation and timesharing is a request to the court to amend its timesharing and visitation with respect to the parties’ minor children. It is based upon a substantial, permanent, involuntary change in the circumstances on which the original judgment was based, or can be in the best interests of the minor child(ren). Grounds: Under the extraordinary burden test, a change of custody is appropriate if, after reviewing all the factors enumerated in Florida Statues Section 61.13(3), the trial court finds that a change in timesharing and visitation will clearly promote or improve the child's well-being to such and extent that any reasonable parent would understand that maintaining the status quo would be detrimental to the child's overall best interests. The test involves more than a decision that the petitioning parent's home would be better for the child. It requires a determination that there is some significant inadequacy in the care provided by the custodial parent. It is only at that extraordinary level that the trial court may change timesharing and visitation. When a court initially renders a parental responsibility decree, it considers the specific needs of the child, including the necessity of a suitable home and sustenance, and the questions of education, medical and dental care, emotional and psychological health, moral development, and a stable living environment. It will then consider the particular abilities of each parent to provide a home, oversee the child’s upbringing, and furnish a suitable family environment. In addition, the court will examine the home, school, and community history and determine whether it is preferable that the child remain in the community. On the basis of these and any other factor it deems appropriate, the court will allocate duties and responsibilities between the parents so that the child will be raised in the best possible manner in the best possible environment. The petitioner for a change in timesharing and visitation has the extraordinary burden of demonstrating that there has been a substantial change of circumstances, such that the child’s continued presence in the other parent’s home will be detrimental to him or her, and a change of visitation and timesharing will be in the child’s best interests. Determination by court: Best interest of Child Once a court has examined the facts to determine whether there has been a substantial change in circumstances, it will reexamine them in deciding whether it is in the best interest of the child to modify the original decree. Modification of Child Support: Statutory Authority for Modification: The court that “initially” entered a child support order has statutory authority to modify the order if there has been a substantial, involuntary and permanent change in the financial circumstances of the parties. A voluntary reduction in pay, job status, or both may not be a valid reason to lower child support. For example, if a surgeon decided to resign in order to teach Kindergarten, he may be required to continue to pay child support at the previously established amount as that is a voluntary reduction in income. Increased or Decreased Need: A substantial increase in the needs of the child is a specific change in circumstances that usually justifies an increase in child support. Often, an increase in a child’s needs is related to an increase in the child’s age. In such case, it is proper for the court to take judicial notice that a child’s needs increase with his or her age. By itself, such judicial notice may be sufficient evidence of an increase in needs. A decrease in the child’s needs may justify the modification or termination of support. For example, if the child moves out of the household of the parent who assumes the majority of the timesharing, the non-residential parent’s child support obligation may be reduced accordingly. A decrease in the residential parent’s income may justify an increase in child support. Ordinarily, to justify a modification of child support payments, a decrease in the primary residential parent’s income must be involuntary. Ability to Pay Support: Change in Payor’s Ability to Pay: The financial ability of the party ordered to provide support is an essential consideration in the determination of whether there has been a substantial change in the parties’ financial circumstances. The paying party must have the financial ability to provide for those needs before a court can order an increase in support payments, regardless of any increased need for support. Voluntary changes affecting the ability to pay, such as remarriage, the purchase of a new residence, or job change, will not support a reduction in the amount of child support. Change in Recipient Parent’s Ability to Contribute to Child Support: An increase in the income of the recipient of child support is a factor to be considered in a proceeding to modify a child support order. A substantial increase in the recipient parent’s income may justify a reduction of support payments required of the payor. However, even if the recipient parent’s income has increased, the payments required of the payor may be increased if his or her income has also increased. Child’s Attainment of Majority: Generally, an obligation to provide child support exists only until the child reaches the age of majority. A court may order child support for a high school student between 18 & 19 years of age, if he or she has a reasonable expectation of graduation before the age of 19. Such extended support is inappropriate if it appears that the child will turn 19 before graduating. Emancipation of Minor Child: An obligation to support a minor may be terminated by the court before the child reaches majority if the child has become self-supporting or has become emancipated. “Emancipation” may occur through any act of a minor that breaks the bonds of subjugation of the child to the parents and establishes the child’s rights to collect and retain his or her own earnings, such as through marriage, enlistment in the military or the establishment of a home away from the parents. Income of Child: Income earned through a child's employment does not decrease the child's needs nor justify a reduction in child support. Income earned by the child from sources other than employment, however, may be taken into account when determining the needs of the child. Support of Subsequent Children: A payor's obligation to support children from a subsequent marriage may not be the basis for decreasing support to the children of a prior marriage. In Robinson v. Robinson, 657 So 2d 958,960 (Fla. 1st DCA 1995), the court found it to be "a legislative recognition that the parties should be aware of their support obligation to existing children, and should take that into account prior to assuming further obligation." In exceptional circumstances, the court may consider the subsequent child's need in setting child support. In Gebauer v. State, Dept. of Revenue ex rel. Hurburt, the severe illness of the mother's subsequent child, forcing her to quit work and stay home to care for the child, was found to justify a downward modification on her child support obligation. In all cases, a parent cannot simply stop paying child support, even if he/she has lost the ability to pay it. A Supplemental Petition for Modification of Child Support, either on a temporary or permanent basis, must be made to the Court, or you must submit an agreement for the modification of child support signed by both parties with the revised amount (in the event you are able to reach an agreement) to the Court which must be ratified by the Judge in order to modify child support. This is especially important for those parents paying through the Department of Revenue or via an Income Deduction Order. Failure to follow protocol can result in jail, suspension of your driver’s license, suspension of professional licenses, a sanction of attorney’s fees, and more.
|
|
---------------------------------------------------------------------------------- Call (561) 416-1818 to schedule a free consultation today. |
Laing & Weicholz, P.L. © 2011