For the vast majority of parents who are divorced or who were never married, family court is part of your reality. And, unfortunately, things change! A parenting plan that worked when a child was three is unlikely to work when a child is 13. Jobs change, people move, life happens. For people in the family court system, it is as if there is a third person involved in all of your life decisions: the Judge.
Under the old law, you had to allege a substantial and continuing change in circumstances (usually they must also have been “unanticipated”) prior to filing for a modification of custody or parenting time. Now, custody is called “legal decision making” and the statutory requirements for when to file a modification have changed.
Modification of Parenting Time or Legal Decision Making
Under Arizona Revised Statutes 25-411:
A person shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after its date … unless the court permits it to be made on the basis of affidavits … that there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.
So the general rule is that you must wait an entire year prior to filing for a modification unless you have sworn statements that the current plan seriously endangers the child. After that, you need not allege a change in circumstances. It need not be unanticipated and can even be temporary.
The statute continues:
At any time after a joint legal decision-making order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence involving a violation of section 13-1201 or 13-1204, spousal abuse or child abuse occurred since the entry of the joint legal decision-making order.
This section of the statute is important because while the State strongly prefers joint legal decision-making, that is not the case in relationships involving abuse. In the event you find out your child is in danger or has been exposed to abuse, you need not wait. You may request a modification now.
Six months after a joint legal decision-making order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order.
The final reason that you can ask a court to modify a court order is, if after six months of the current order the other party is not complying.
There are many reasons you may want to have your court order modified. You do not always have to go through the courts. If you and the other parent agree to a modification of parenting time you may modify informally or by consent.
THIS DOES NOT APPLY TO A MODIFICATION OF A SUPPORT ORDER.
An Emergency Parenting Time Modification
There is nothing worse than sending your child into an environment where you think they may be, or you know, they are in danger. If this is the case, you may qualify to get temporary emergency custody.
In order to file for an emergency modification, you must first have evidence that your child is in danger of serious, immediate bodily harm, or the health, safety, and welfare of your child is in serious and immediate jeopardy. You need to give specific examples of what the emergency is, and why the situation is so serious that it warrants taking away someone’s child without giving him or her a chance to respond. In my experience, evidence of abuse, drug use, serious neglect, or the presence of dangerous people (known felons, child abusers, etc.) are all great reasons to ask for a temporary emergency change.
The other requirement for an emergency modification is that a custody order must already exist and you must have already filed, or you will contemporaneously file, an underlying request for a modification.
This is sometimes really frustrating. I have a client whose ex recently, and temporarily, moved into a dangerous environment. She doesn’t want a permanent change in all parenting time, she just wants his visits temporarily suspended until he gets back into a safe environment. While I am tempted to simply file for the temporary emergency custody, the statutes require we ask for an underlying modification.
Modification of Child Support
Once a child support amount is ordered, it is always modifiable under the correct circumstances. As a general rule, if changes have occurred to incomes, parenting time, birth of other children, or expenses, and those changes would result in more than a 15% change to the child support award, a person can seek a modification.
Modifications can be through a simplified process or through a traditional Petition for Modification. Generally, parents are required to exchange information annually in order to assess whether or not a modification of child support is appropriate.
Modifications of Spousal Maintenance
Unless the parties agree that a spousal maintenance award is non-modifiable, it is modifiable when there have been significant changes in circumstances. For instance, if a Wife receiving $3000 per month alimony gets a fantastic job, or moves in with a rich boyfriend, or inherits $1million, Husband may want to petition the court to modify spousal maintenance. If Husband loses his job, retires, or makes a job change, these may be unexpected changes in circumstances warranting a modification of spousal maintenance.
If spousal maintenance was waived or not awarded in a divorce, you cannot now ask for spousal maintenance! Just like an initial award of spousal maintenance, this is very fact-specific. If an order for spousal maintenance was entered and you cannot pay it, you should consider requesting a modification.
Modification of Property Division
Property division awards are non-modifiable. Unless you have now found hidden assets, you cannot modify the decree.
Sometimes, modifications are inevitable. Life is long and many things change. If we can help you with your case do not hesitate to let us know. As always, give us a call for a free consultation. 480-649-2905.