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Modification and Enforcement of Child Support/Custody

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Child support and custody orders are based on the best interest of the child. If circumstances change (e.g., a parent needs to relocate), the parties are free to return to court to seek modifications of these orders. However, failing to comply with these orders (e.g., refusing to pay court-ordered child support or denying visitation to non-custodial parent) can have very serious consequences such as wage garnishment or loss of custody.

It is important to know your rights and obligations with respect to custody and support orders at all times. A family lawyer can help you understand, change, comply with or enforce a support or custody order.

Modification of Custody and Support Orders

Though the laws vary amongst the states, child support and custody arrangements can be modified when it is in the best interests of the child. Most jurisdictions require the party requesting the modification to demonstrate a substantial change in circumstances sufficient to warrant the adjustment.

Modification of Support. Some of the reasons child support may be modified (upward or downward) include:

  • Changing needs of child or children
  • A change in circumstance (e.g., employment) for either the non-custodial or custodial parent
  • Change in custody arrangement
  • Emancipation
  • Military Enlistment
  • Misrepresentation or failure to account for circumstances when the original order was issued

State and Federal Enforcement Laws

Custody and support matters are governed by both state and federal laws including:

  • Parental Kidnapping and Prevention Act (PKPA) – requires all states recognize and enforce a custody determination from the state that issued the order.
  • Uniform Interstate Family Support Act (UIFSA) – allows all the states to work together to collect child support.
  • Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) – along with the PKPA, the UCCJEA helps enforce custody orders across state lines.
  • Hague Convention on International Child Abduction – works toward the prompt return of children wrongfully abducted or wrongfully detained from one member nation (approximately 80 nations are members) to another.
  • Uniform Parentage Act (UPA) – many states have adopted this act whose goal is equal treatment of marital and nonmarital children (e.g., children born out of wedlock) and certain presumptions of parentage, especially in regard to paternity.

To learn more about these laws and how they might affect your case, speak to a family lawyer.

Modifications to support will usually be effective from the date the motion is filed so it is important to speak to an attorney as soon as possible. However, it is not advisable to agree to any change in the support arrangement while the case is pending (or ever) without the advice of an attorney and/or by order of the court.

Modification of Custody. There are many different types of child custody arrangements (see sidebar), any of which may be modified given a material change in circumstances. Some of the reasons the court could order a change include:

  • Medical Problems
  • Substance Abuse
  • Domestic Violence
  • Interfering with parental visitation
  • Relocation
  • Death

To learn more about the standards and procedures for modifying a custody or support order, consult a family law attorney as soon as possible.

Enforcement of Custody and Support Orders

It is not advisable for a custodial parent to "punish" a non-paying parent by refusing access to a child. Similarly, it is unlawful to withhold child support if there is a custody dispute. If either parent is not complying with a custody or support order, he or she should speak to an attorney about options for enforcement.

Support Enforcement. If the non-custodial parent fails to pay child support, options for enforcement include:

  • Interception of tax refunds
  • Wage garnishment
  • Seizure of property
  • Suspension of business/professional licenses
  • Driver's license revocation
  • Contempt of court
  • Jail
  • Report to credit bureau

If the party responsible for paying support is unable to pay support due to a change in economic circumstances, he or she should speak to an attorney about petitioning for an adjustment to the order.

Custody Enforcement. Custody orders can be enforced against either the custodial or non-custodial parent. If there is an interference with custody (e.g., ongoing conflict regarding exchanges or denial of access), your attorney can petition the court to enforce the custody order. However, any parent who is concerned that his or her child is in danger or has been abducted should call the police immediately.

State and Federal Enforcement Laws

Physical custody defines with whom a child will live and how they will spend time with the other parent (usually called visitation). Legal custody refers to the authority to make major decisions concerning the health, education and welfare of the child. A custody order or a modification thereto usually provides for both the physical and legal custody of the child based on one of the following arrangements:

  • Sole Physical Custody – The child lives with one parent (the custodial parent) but the other parent (the non-custodial parent) may have visitation rights.
  • Joint Physical Custody – Both parents have significant periods of physical custody.
  • Sole Legal Custody – One parent has the right and the responsibility to make the decisions relating to the health, education and welfare of a child.
  • Joint Legal Custody – Both parents have the right and responsibility to make decisions relating to the health, education and welfare of a child.
  • Joint Custody – Both parents enjoy legal and physical custody.

A family law attorney can advise you on which custody arrangement might be best given your particular set of circumstances.

Failure to comply with custody orders can result in criminal charges, including contempt and felony kidnapping. However, there are permissible exceptions — most notably when a parent has reason to believe that by complying with the custody order the child is in danger. The consequences for impermissible defiance of a child custody order may include fines, jail time, and loss of custody. A family law attorney can help determine how the laws of your state apply to your situation.


 

Family Lawyer

It is important to know that even if parties privately agree to make changes to support and custody arrangements, the changes might not be enforceable without being incorporated into a formal court order. In fact, if child support payments are lowered based on a private agreement, the responsible party could actually be in arrears and face charges of contempt.

Custody and support matters are complicated, so it is best to contact an attorney who can advise you on the laws that apply to your unique situation.



Did You Know?

A parent who is more than $5,000 in arrears on child support payments may have his or her passport denied.

Source:Office of Child Support Enforcement