Ultimate Guide to Modifications
How Does a Court Modify Child Custody, Child Visitation, Child Support, and Alimony?
Family Law matters might be unique in that “finality” does not quite apply to most judgments. In a car wreck case, or a breach of contract case, there is a winner and a loser. Once the court has decided who won and who lost, the lawyers pack their briefcases, and the clients live with the results, good or bad.
It is not so simple in Family Law matters. A mother who won custody of her children in Year 1 might become a drug addict in Year 2. The children need the “final” custody award to be changed. A father who was awarded every-other-weekend visitation in Year 1 moves to California in Year 2. His visitation schedule no longer works; it needs to be changed. A husband who was ordered to pay alimony in Year 1 is the victim of a car accident and becomes disabled in Year 2. He can no longer afford to pay the same amount as before.
In Mississippi, the law recognizes a need for litigation to end so that people can get on with their lives, whether they won or lost the case. But the law also recognizes it sometimes happens that circumstances change so dramatically that the best thing is for the “final” judgment to be modified.
The central idea to keep in mind is that the change in circumstances has to be significant. Courts do not want to be overburdened with parties constantly relitigating their cases every time the wind changes direction. No modification will be allowed unless something “material” has taken place — usually, something that the parties or the court could not have reasonably anticipated when the original judgment was litigated.
There are different standards of proof for the award sought to be changed:
Sole Custody To change an award of sole custody, the petitioner must prove one of two things:
There has been a material and substantial change in the circumstances of the custodial parent or of the children which has a substantial and adverse effect of the children; and the modification sought would be in the best interests of the children; or
The child is living in a custodial environment clearly adverse to his best interests, but appears somehow to remain unscarred by his surroundings; and the modification sought would be in the best interests of the child.
Joint Custody To change an award of joint custody, the petitioner must prove that the existing custodial schedule is unworkable. One parent’s relocation, or significant conflict between the parents can trigger a modification of joint custody.
Visitation To change an award of visitation, the petitioner must prove that the existing custodial schedule is unworkable. A mere showing that the petitioner wants more time (or wants the other parent to have less time) is insufficient. The petitioner must also prove that the requested visitation schedule is in the child’s best interest. As a practical matter, if the petitioner proves the current visitation schedule is unworkable, the Chancellor is likely to create her own, new visitation schedule, rather than adopt the petitioner’s requested schedule.
Child Support To change a child support award (whether to increase or decrease the amount), the petitioner must prove that there has been a substantial and material change in the circumstances of the child or the parents since the entry of the child support judgment sought to be modified. The petitioner must also prove that this change was not reasonably foreseeable when that judgment was entered.
Alimony To change an alimony award (whether to increase or decrease the amount), the petitioner must prove that there has been a substantial and material change in the circumstances of one of the (former) spouses since the entry of the alimony judgment sought to be modified. The change should be one that affects the disparity between the parties’ respective financial conditions. The petitioner must also prove that this change was not reasonably foreseeable when that judgment was entered.
