Modifying Child Support and Custody Orders: What You Need to Know

There is an inherent contradiction when making decisions about time sharing and child support.

On the one hand, there needs to be stability—settlements and judgments need to be relied upon, and the parties (the parents) need to know what their rights, duties, and obligations will be going forward.

Stability also helps the child; a child who gets used to one schedule should not have to suddenly adapt to a new one or move just because parents change their minds.

This means that judgments or settlements for child support and custody need to be final and determined and should be difficult to ever modify.

But on the other hand, life is uncertain. When you make decisions on time sharing and support when the children are little, you never know what curve balls life will throw at you later on. That means that decisions about time sharing cannot be absolutely permanent, as they need to account for changed circumstances in the parent’s life.

Agreeing to Modifications

Before getting into the details of how time sharing or support are modified, remember that parents can always agree to a modification. If they do both agree, the agreement should be put in writing and then given to an attorney to file with the court so that there is a record of the new agreement or altered terms.

Unforeseen Changes

The law has stuck somewhat of a balance when it comes to modifying time sharing and support.

The first requirement when modifying time sharing of a child, or child support, is showing that there has been a change of circumstances that was unforeseen at the time of the entry of the original settlement agreement or divorce case.

So, for example, imagine that dad works on commission and sometimes makes more and sometimes makes less money at work. The fact that dad has two or three “down years” financially would not justify modifying child support. It was known all along that dad’s income varied, and the parties knew that income could go up or down erratically.

Note that in 2023, the requirement that a changed circumstance be unforeseen or unanticipated was removed from the text of the law. However, in reality, many family law judges will still look at the circumstances and deny parents seeking modification if the modification is based on factors that were known to the parents at the time the original judgment or settlement was entered into.

Substantial and Permanent

Any change in circumstance must also be substantial. This means two things: that the change is not a temporary change, but rather, is permanent, and that the change is actually material—that is, enough of a change to warrant a modification.

For example, if mom needs dad to watch the kids a bit more for two months so she can get job training, that may not be a permanent change—it is expected to conclude in two months, at which time the parties can resume their normal schedule.

There is no hard line time limit for how long changed circumstances need to exist to be considered truly permanent. That is evaluated on a case-by-case basis.

Many parents who fall on hard financial times seek to modify their child support, but unless it is proven that the decreased earnings are permanent, they will not justify a downward modification of support. This can avoid a situation where a parent temporarily under-employs him or herself, to make it look like he or she is earning less money in order to try to pay less child support.

Best Interest of the Child

Any modification must also be in the best interest of the child. The court will look at the same factors that were used to make the initial determination of time sharing.

Stability for the child is of paramount concern for the court, and it will not enter a modification if the court feels that the modification will upset the child’s life or take the child away from his or her friends, hobbies, school, or other elements of the child’s life.

There are times when a court can enter a modification in the absence of any of these factors, but that is usually when there is violence or some event that immediately threatens the child’s physical or emotional well-being.

Noncompliance with an Existing Judgment or Agreement

It is unfortunately common that a parent does not exercise the visitation or time-sharing that he or she is supposed to have. This can lead to the other (complaint) parent wanting to modify time sharing.

But the failure to abide by a time-sharing agreement or judgment, by itself, will not justify a modification. The party that is in compliance would have to bring a motion for contempt or another motion to compel compliance with the agreement or judgment against the other parent.

Relocation as Justification

If a parent was located more than 50 miles away when the original judgment or settlement was entered into, and that parent now moves closer to the child (within 50 miles), that will automatically warrant a changed circumstance, allowing a court to modify a time sharing arrangement, even in the absence of any other evidence.

Likewise, although not specifically written into the statute, most courts will also assume that a parent moving away further than 50 miles from the other parent would constitute a substantial, permanent, and material change in circumstances.

You Need a Court Order

Remember that to change a parenting plan or to change custody obligations, you need a court order. That means that you can’t just stop paying, deny visitation, or alter visitation schedules on your own.

If you feel there is an emergency, you can file an emergency motion to modify. However, outside of that, even if you were to win your petition to modify child support, the court would still force you to pay 100% of what your previous child support obligation was before the modification was entered.

That means that parties seeing a modification should comply with whatever orders or agreements are in place while waiting for the resolution of their modification case.

Need to change the terms of your visitation, custody time sharing, child support agreement, or judgment? Is the other parent threatening to alter your time-sharing or child support agreements or judgments?

Anthony J. Diaz is an experienced family law attorney focusing on Mediation and Collaborative Divorce. His offices are located at 2431 Aloma Ave Suite #124,
Winter Park, FL 32792 and 3720 Suntree Blvd., Suite 103G, Melbourne, FL. 32940.

You may contact Anthony Diaz by calling 407-212-7807 or by email anthony@anthonydiazlaw.com or visit anthonydiazlaw.com/ for more information.

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