Do you already have a court order, but it's "not working"? Has something changed in your life, such as a new job, new residence, a remarriage, or some new behavior from your ex-partner, and now the custody agreement that's been fine for years no longer what's best for your children? Did you agree to a spousal support (alimony) amount, but now that payment isn't fair anymore?
In the context of Ohio family law, the legal process of altering the terms of a court order that was issued in a final judgment of divorce, dissolution, legal separation, or final parenting order is referred to as Post Decree Modification. These modifications can target various aspects of the original court order, including child custody, child support, spousal support (alimony), and parenting time.
Modifying a parenting order:
To modify a parenting order, Ohio law requires that the party requesting the modification provide evidence of a substantial change in circumstances of the child, the custodian, or either parent if the parents have shared parenting AND that the proposed modification is necessary to serve the best interests of the child.
Modifying custodial rights:
If you are asking the court to change who has primary custody of the child, you have to be able to prove that the modification is in the best interest of the child and either that the current residential parent has agreed to the change, or that the child has been fully integrated into the family of the person seeking custody, or that the harm likely to be caused by a change of environment is outweighed by the advantages of the change in environment for the child.
These rules are found primarily in Ohio statute, under Revised Code §3109.04(E). But, there are a massive number of previous court case decisions that deal with every situation under the sun when it comes to changing a parenting order.
Modifying Child Support:
Modifying a child support order is also first put through a test to see if there has been a substantial changes in circumstances that would warrant a modification. Revised Code §3119.79 tells us that if a new child support worksheet is more ten percent more or ten percent less than the current order, there is automatically a change in circumstances, but other facts can also be used to show a change, such as a significant change in parenting time.
Modifying Spousal Support:
The legal standard to modify a spousal support order is more strict. First, it's important to understand that unless the divorce or dissolution decree specifically spells out that the family court can modify the spousal support order later, then the order cannot be changed, hard stop. Once the order is finalized, there's no going back. It is essential to make sure you have competent legal counsel when you are considering entering into a divorce settlement. Too many people are haunted years later by an alimony award they can't (or don't want!) to change.
If the court has jurisdiction to change the amount or duration of the spousal support order, then you have to first show that there has been a change in circumstances, that the change was not taken into account in the order (regardless of whether it was foreseeable), and that the change requested results in an order that is fair and equitable.
What is a Change in Circumstances?
In Ohio family law, a change in circumstances refers to a significant alteration in the situation of one or both parties that justifies the modification of an existing court order. Some common examples of changes in circumstances that may warrant a post-decree modification are:
Child Custody and Visitation
1. Relocation: One parent moves a significant distance away, impacting the current custody or visitation arrangement.
2. Change in Child’s Needs: The child's educational, medical, or emotional needs change, requiring adjustments in custody or visitation schedules.
3. Parental Behavior: Changes in a parent's behavior, such as substance abuse, criminal activity, or any conduct that may negatively affect the child’s well-being.
4. Remarriage or New Relationships: Either parent remarries or enters into a new relationship that significantly affects the child's living conditions or emotional environment.
5. Employment Changes: Significant changes in a parent's employment status, such as a new job with different hours or a loss of employment, which affect their availability for custody or visitation.
Child Support
1. Income Changes: Substantial increase or decrease in either parent's income, such as receiving a promotion, losing a job, or experiencing a significant change in earnings.
2. Child’s Expenses: Increases in the child’s expenses, such as medical bills, educational costs, or extracurricular activities.
3. Changes in Custody: Modifications in custody arrangements that alter the amount of time each parent spends with the child, impacting financial responsibilities.
4. Parenting Time Adjustments: Significant changes in the amount of time the child spends with each parent, which may affect the calculation of child support.
Spousal Support (Alimony)
1. Financial Status: Significant changes in the financial status of either party, such as a substantial increase or decrease in income, loss of employment, or retirement.
2. Health Changes: Serious health issues or disabilities affecting either party’s ability to work or impacting their financial needs.
3. Remarriage or Cohabitation: The recipient spouse remarries or cohabitates with a new partner, potentially altering their financial needs.
4. Cost of Living: Significant changes in the cost of living or inflation affecting the standard of living of either party.
Best Interest of the Child
When it comes to modifications involving children, Ohio courts will always prioritize the best interests of the child. How does the court do that? Ohio doesn't have one single definition for what a child's best interests are; every family and every case is unique. So, the legislature wrote a series of factors directly into the law - the parties present evidence and testimony in support of their answer to these factors (which read like questions), and the court weighs all of the evidence for each factors against each other to make a decision on what order will be best for the child overall. These factors are found in Revised Code §3109.04(F):
- The wishes of the child's parents regarding the child's care;
- In some circumstances, the wishes and concerns of the child;
- The child's interaction and interrelationship with the child's parents, siblings, and any other person who may significantly affect the child's best interest;
- The child's adjustment to the child's home, school, and community;
- The mental and physical health of all persons involved in the situation;
- The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;
- Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor;
- Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to any criminal offense involving abuse, neglect, or sexual abuse of the children or household members.
- Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;
- Whether either parent has established a residence, or is planning to establish a residence, outside this state.
If there is a request for shared parenting, the court must also consider:
- The ability of the parents to cooperate and make decisions jointly, with respect to the children;
- The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
- Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
- The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
- The recommendation of the guardian ad litem of the child, if there is one.
Legal Procedure
To initiate a post-decree modification in Ohio, the following steps are generally involved:
In many ways, filing a motion to modify a parenting or divorce decree can feel like starting a whole new court case, especially if you are asking for a change in custody rights. It is not uncommon for heavily contested modification cases to last as long as a year or sometimes even longer. But, many times an experienced family law attorney can help identify ways to solve the problems that have come up, negotiate with the other party or their attorney, and reach agreements that help bring everything back to a status quo. If that fails, an experienced family litigation attorney will not be afraid to argue for you at trial to make sure the new court order accomplishes what is best for your children.
Conclusion
Post-decree modifications are a crucial aspect of family law that allows court orders to be adapted to changing circumstances. For individuals seeking a modification, it is advisable to consult with a knowledgeable family law attorney to navigate the legal complexities and present a compelling case to the court.
If you need more specific guidance on post-decree modifications or representation in such matters, please feel free to contact my office for a consultation.
