“Change in Circumstance”
“Change in Circumstance” is a term you may have heard talked about in family law circles in California. Not all family law cases are about getting a divorce or reaching a custody agreement with an ex partner, but rather what happens years after you have reached an agreement. The seasons change and so can either parties’ circumstances. A lot of clients who have already been divorced for many years are in need of a modification to their current agreement or court orders.
For the court to make any changes to an existing order, you often must prove that there has been a “change of circumstance.” An example of a “change in circumstance” is if one of the ex-spouses in a spousal support situation ends up later getting re-married. General language in a Marital Settlement Agreement may terminate spousal support once the supported party re-marries. Or, support can terminate by operation of law because of the re-marriage. If you are the person paying support to an ex-spouse and you decide to re-marry, this is less likely to qualify for a change of circumstance in the eyes of the court. In order for an attorney to properly advise you in either capacity, you should bring in a copy of your most recent agreement for them to review.
The most common change in circumstance has to do with child custody arrangements. Every California court is concerned with the best interest of the child, and therefore will consider the children’s health and safety as priority number one. For instance, if the needs of the child change – such as moving schools, or if the child is in need of certain medical or psychological treatment – the court may consider modifying custody. Further, if one of the parties’ has been caught using illegal drugs, or is accused of child abuse, or had a felony conviction, the court will likely modify an existing order for the best interest of the child.
In the alternative, a parent may be interested in seeking a custody modification when one parent who was once considered unfit to care for the child is now better and circumstances have since improved. Examples of such improvements would perhaps include a parent securing gainful employment, or a safe place to live (where the child has their own room and bed), or completion of parenting or anger-management classes to the satisfaction of the court’s orders.
As child custody changes, likely so will the amount of child support. Generally speaking, when a parent goes back to obtain a modification in child custody an attorney will also advise you to modify support as well. Child support is usually calculated by a set formula which results in a “guideline” amount. The more time the child has with the parent, usually the more financial support will be needed from the other party. It is always the hope of attorneys to attempt to make these changes informally without a judge’s intervention. But in a lot of cases, the court’s involvement is necessary and litigation takes place in the courtroom.
Every situation is different, and it is always a good idea to seek the advise of qualified attorney to learn what best suits your individual needs. The attorneys at IRWIN & IRWIN, LLP, would be happy to meet with and advise you.