Video Transcript
Welcome to FreeDivorce.com.
Christina: This is Christina.
Ed: This is Ed. Today’s we are going to talk in more detail about how to modify two types of existing court orders. We are going to cover modifying child custody orders and child support orders.
Christina: Ed, let’s start with child custody orders. Are child custody orders always modifiable and why would someone want to modify an existing child custody order.
Ed: Child custody orders are always modifiable. In general, court orders that pertain to children are modifiable. The court always wants to retain jurisdiction to modify orders that relate to children because the court wants to ensure that children are protected. There are all kinds of reasons why you may want to modify a child custody order. The following are just a few common examples:
Example #1: Assume you were divorced when your child was only an infant, perhaps still nursing. At the time of the divorce, it was agreed father’s physical custody time with the child would be limited to short blocks of time because the child was so young. Now, the child is three years old and able to spend more time in the father’s physical custody. If the parties can’t stipulate a new custody arrangement, one party will need to file a motion and ask the court to make new custody orders.
Example #2: Assume when the parties were divorced, the child was 8 years old and the parties agreed to share physical custody on a 50/50 basis. Everything works well for the first couple of years, but then mother remarries and thereafter, her new husband’s employer transfers him to New York. The 50/50 custody order won’t work after the proposed move. If the parties can’t stipulate a new custody arrangement, one party will need to file a motion and ask the court to make new custody orders.
Example #3: The divorce judgment provides for a mother to have primary physical custody and the father to have physical custody on alternate weekends. After the judgment is issued, the father develops a serious drug or alcohol problem and repeatedly drives under the influence with the minor children in the car. Father refuses to deal with his addiction. In this situation, the Mother may want to file a motion to restrict the father’s visitation to supervised visitation or to seek court orders conditioning the father’s future custodial time upon his successful completion of a substance abuse treatment program and “clean” random urine test results.
There are countless reasons why one party or the other may want to modify existing child custody or child visitation order.
Christina: If my spouse and I are able to reach an agreement on how an existing child custody order should be modified, what do I do?
Ed: If you and your spouse can agree on the terms of a modified child custody arrangement, the new agreement can be set forth in a Judicial Council form known as, “Stipulation And Order For Custody And/Or Visitation Of Children”, which is FL-355. The FL-355 can be found in our Court Forms Database. The form is free.
Christina: How do I fill out the FL-355?
Ed: The FL-355 can be used to establish a brand new custody order, but it can also be used to modify an existing custody order. There is a box in the caption of the FL-355, to the left of the case number, which reads, “Modification”. If you are modifying an existing custody order, check that box when you fill out the form.
When you fill out the FL-355, you can describe your new custody agreement by means of an attachment or by means of using the collection of Judicial Council child custody forms listed on the FL-355. Those forms are FL-341; FL-341(A); FL-341(B); FL-341(C); FL-341(D); and FL-341(E). All of these court forms can be found in our Court Forms Database and they are all free. These child custody forms are fairly easy to fill out. Mainly, you are checking a bunch of boxes.
Christina: What if the child custody change I want to make is very simple, for example, we just want to expand the mid-week Wednesday dinner visit to an overnight visit, do I have to fill out a bunch of child custody forms as attachments to the FL-355?
Ed: You don’t have to use the child custody attachment forms. If you elect not to use these Judicial Council custody forms, but instead want to use a simple attachment to the FL-355 that describes how you want to modify the existing court orders, you can use the Judicial Council “Attachment” form MC-025. You can find the MC-025 in our Court Forms Database.
Christina: What if my spouse and I can’t agree or stipulate to a modification of an existing child custody order, what can I do?
Ed: If you and your spouse cannot agree on a new child custody arrangement, then one of you will need to file a motion with the court using the FL-300. In another video, we explain how to fill out and file the FL-300 to modify child custody.
Christina: What will the court take into consideration if I file a motion asking to modify an existing child custody order?
Ed: If you ask the court to modify an existing child custody order, the court is going to primarily consider what will be in the best interests of the child. The court does not give much weight to what you think is best for you. It’s all about what is best for the child.
Christina: If I file an FL-300 motion to modify child custody, is the court going to require me to participate in any court programs before the hearing on my motion?
Ed: Yes. If you file an FL-300 motion to modify child custody, before attending the hearing, you will be required by the court to participate in a court program known as “child custody mediation” or “child custody recommending counseling”. We discussed both of these programs in an earlier video contained in our series of videos on how to obtain temporary court orders at the beginning of a contested divorce case. If you are going to file a motion to modify an existing child custody order, you should watch those earlier videos. We also have a video that offers valuable tips on how to prepare for, and what to do during, a “child custody mediation” or “child custody recommending counseling” session.
Christina: If I file an FL-300 motion to modify child custody, should I include in my motion a request to modify the existing child support order?
Ed: If you file a motion to modify child custody, most of the time you will also want to include in the motion a request to modify child support. Since the amount of child support is linked to the child custody timeshare percentage, as soon as you change the custody arrangement, the amount of child support should be re-set. However, the amount of child support will only be re-set if you make a request in your FL-300 that the court modify child support to a “guideline” amount upon any change in the child custody arrangement.
Christina: Let’s turn to child support. Are child support orders modifiable?
Ed: Child support orders are modifiable. The court always wants to retain jurisdiction to modify child support orders to ensure that children are properly supported.
Christina: Can you give me some common reasons why someone would want to modify an existing child support order?
Ed: There are all kinds of reasons why you may want to modify a child support order. The following are just a few examples:
Example #1: Your divorce judgment states that the father will pay the mother $1,000 per month in child support. Two years later, their Husband switches jobs and is earning substantially more money. The mother may want an increase in the amount of child support since the father can afford to pay more. The child should benefit from the father’s success.
Example #2: Your divorce judgment states that the father will pay the mother $1,000 per month in child support. The $1,000 per month figure was based on the mother having 80% custody and the father having 20% custody. Three years later, the children are now spending 50% of their time in their father’s physical custody. Father is going to want a decrease in the amount of child support because, according to the statutory “guideline” child support formula, he would owe a lot less child support when he has custody of the children 50% of the time as opposed to the amount of child support he would owe based on a 20% custodial timeshare.
Example #3: Your divorce judgment states that the father will pay the mother $1,000 per month in child support. After the divorce, the father remarries and has another child. The birth of the new child is a “hardship” deduction allowed under the statutory “guideline” child support formula. If a new child support calculation is made, the child support number will be significantly lower because of the new baby.
Example #4: Your divorce judgment states that the father will pay the mother $1,000 per month in child support. The family home is sold as part of the divorce settlement. A year after the divorce, father buys a new house, with a big mortgage, and now has mortgage interest write-offs and property tax write-offs. The mortgage interest and property tax write-offs will factor into the statutory “guideline” child support formula. If a new child support calculation is made, the child support number owed by father to mother will be significantly higher. If mother was the party that purchased the new house, the child support she receives should be decreased.
Christina: Are there other reasons why someone would want to modify an existing child support order?
Ed: There are lots of other reasons. Any time there is a change in any of the data that was entered into the “guideline” child support calculation formula, it will change the amount of child support that should be paid. So, if there is a change in either parent’s income, a change in the custodial timeshare percentages, a change in the amount someone pays for health insurance, a change in how much someone contributes to their 401(k); etc., then the “guideline” child support number will change. Whether the amount of the change is worth the time and trouble of filing a modification motion with the court is up to you.
Christina: If you don’t understand how the child support “guideline” formulas work with computer software, you should watch our earlier “Getting Educated” series of videos. Watch the videos in that section that pertain to child support.
Christina: What if I think the existing child support order should be modified and my ex-spouse is willing to stipulate to the modification – what do I do?
Ed: If you and your spouse can agree on how to modify an existing child support order, the new agreement can be set forth in a Judicial Council form known as, “Stipulation To Establish Or Modify Child Support And Order”, which is FL-350. The FL-350 can be used to establish a brand new child support order, but it can also be used to modify an existing child support order. You can find a fillable version of the FL-350 in our Court Forms Database that you can fill out and print for free.
Christina: What if my spouse and I can’t stipulate to modify an existing child support order, what can I do?
Ed: If you and your spouse cannot agree on a new child support arrangement, then you have a couple of options. One option is to contact the Department of Child Support Services, also known as DCSS, for the county where the child resides and ask DCSS to initiate proceedings to modify the existing child support order to the proper “guideline” amount. DCSS will do this for free, regardless of the amount of your income or assets. We talk about DCSS in more detail in our “Getting Educated” series of videos. You can watch the “Getting Educated” videos that pertain to child support.
Christina: If I don’t want to use DCSS, what can I do?
Ed: The second option is to file a motion with the court to modify the existing child support order using the FL-300. In another video, we discuss how to complete and file the FL-300.
