Modification of Custody and Child Support

Under Oregon law, any order regarding child custody and parenting time, child support, spousal support  and non marital custody and support are subject to modification under specific circumstances.  Generally, if you are seeking to modify a court order, you must prove that there was a substantial, unanticipated change in circumstances since the time of the entry of the order. By contrast, property divisions or equitable distribution may not be modified unless it is to address assets disclosed during the original divorce proceedings.

A modification case is started by filing a motion and affidavit citing the facts you claim are a substantial change in circumstances. You are required to sign the affidavit under oath.

The former spouse or other parent is not required to file any response to the motion.  Instead, the opposing party will ask the court to dismiss the motion at the end of the other side’s case because s/he did not establish any basis to modify the order.

Custody Modification

If you need to modify a custody or parenting time order in Oregon, you must show:

• an unanticipated change in circumstances regarding the other parent’s ability to properly care for the child/ren.
• that the requested modification is in the child’s best interests.
• that the benefit of the change outweighs any negative effects of the instability of the change in custody.
• The change dates back to the time of the most recent custody order, not from a parenting time order.  

The “best interest” factors for modification are the same factors the court considered in making the original custody decision. Certain restrictions apply to the modification of custody or parenting time orders from other states under the UCCJEA and the Federal Parental Kidnapping Prevention Act.

Other Reasons to Modify Child Custody and Parenting Time

In addition, the court can modify parenting time on the motion of the noncustodial parent if the custodial parent or someone acting for them has interfered with the noncustodial parents parenting-time rights. However, Oregon courts seem hesitant to modify on this basis. Instead, the court can opt to order extra parenting time, impose a bond, require counseling, suspend support, or order payment of attorney fees. The courts can also modify custody and parenting time in any restraining orders issued under the Family Abuse Prevention Act.

Specific Changes in Circumstances

The following facts would likely support a modification

• Joint Custody: Failure or refusal to cooperate is a change in circumstances for purposes of modification of joint custody
• Gross moral misconduct of parent
• Actual Custody given to third party: Babysitting arrangements necessary for work do not constitute delegation of parenting sufficient for a custody change
• Neglect by Custodial parent even when the child is well-cared for by third parties
• Endangerment by Custodial Parent - marriage to violent criminal, exposure of children to likely risk of potential violence, excessive drinking, failure to provide for the child’s basic needs
• Instability of custodial parent – single move not enough but repeated and unsettling moves if detriment is shown
• Improvement in the noncustodial parent’s situation may be sufficient to change custody when the original custody decision was based on the comparative deficiencies of the parents when coupled with a deterioration in the custodial parent’s living situation and the children’s unstructured and unstable lives

The following facts would NOT be likely to support a modification

• Remarriage of parent – not without showing of detriment such as risk to child.
• Parental alienation or interference - if adverse emotional effect although courts prefer other enforcement mechanism
• Hostility between parents does not justify a change of custody because a change in custody will not improve parental relations.
• Wishes of the child absent other proof probably would not support a modification
• Neither the statute or cases provide specific guidance for determining modifications of noncustodial parenting time. However, the same analysis for custody modifications would apply. 

When Court Approval is Not Necessary

If you have agreed to a joint custody modification, the court can’t refuse to order it. Similarly, if you have agreed to a parenting-time modification, the court must order it provided you have submitted a notarized stipulation on the approved form although the court can require you to personally appear at a hearing before entering the order.

Parental Relocation

Oregon recognizes that children’s best interests are served by maintaining children’s relationships with both parents. However, parents frequently must relocate for financial reasons or other life circumstances that may change after entry of a custody order. But because one parent’s relocation has a significant effect on the interest of the non-relocating parent and the child, there is not an absolute right to relocate with a child more than sixty miles away from the other parent.  Relocations are typically brought before the court on motions to modify custody after the relocation is announced or contemplated.

The parent seeking to move must demonstrate that the proposed move is in the child’s best interests.  If you are considering a distance relocation, you should try to work out parenting time and custody arrangements that meet the needs of both your child and the other parent.  Conversely, if you oppose the move, you have must prove that it will be detrimental to your child. Any objections to a proposed move or relocation should be based on your child's interests, rather than the inconvenience to you of the proposed relocation.

Under state and federal law, you should not move beyond 60 miles wihtout permission of the court in order to avoid the risk of civil or criminal liability. Relocation cases can be difficult and require thorough preparation as they are highly dependent upon the facts of each case.  You need to be aware of these trends if you or your former spouse are considering relocation. For a better understanding of the laws and the necessary strategy  to ensure that your rights as a parent and the interests of your children are addressed in any relocation, contact me.

Support Modification

Like modifications of custody, support modifications require that the party seeking the modification show a substantial change in circumstances.

Spousal Support

The showing necessary to modify spousal support is whether the purposes of the initial award have been met. Thus, remarriage of the ex-spouse receiving support would not in and of itself support modification unless the paying ex-spouse can show that the remarriage rendered the reasons for the original spousal support unnecessary. 

Child Support

A party seeking an increase or decrease in child support payments must allege and prove a change in circumstances not contemplated by the divorce judgment. To modify child support, the change in circumstances must be shown by a substantial change in a party’s economic circumstances, including expenses, income opportunities (including future income and assets), benefits of the parties from all sources (including retirement benefits, travel, recreation, and medical care, Social Security and veterans’ benefits received on behalf of a child due to parent’s disability or retirement).

Under Oregon law, state support agencies are authorized  to conduct periodic reviews to ensure that child support awards comply with the state child support guidelines. There is no minimal change required for modifications after a periodic review.

However, not all changes of circumstances will support a modification of child support. For example, if a payor voluntarily lowers income or earning capacity in order to avoiding child support, and that change is found to be in bad faith, the modification will be denied. In addition, it could impact future modification requests.