Post-Divorce Problems: My Children Aren't Safe with my Ex!

As described in our previous post, Should my Child Support Change?, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support.

The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable.

This means that if there is a change in circumstances which has caused your children to be put in an unsafe situation, you can bring that change to the court’s attention and potentially obtain a change in the custody and parenting plan orders.   If the change is an emergency situation, then you can request that the court immediately transfer custody or limit parenting rights by filing an Emergency Motion along with an Emergency Affidavit.

In order to make a change on an Emergency Motion the emergency must be significant enough for the court to make a change without the opportunity for the other party to be heard.  Usually an order after an Emergency hearing will only last for a few days until the other party can attend a hearing and tell their side of the story.

Some examples of significant enough events to constitute an emergency are a parent abusing the child, taking illegal substances, being admitted to a psychiatric facility, or being arrested on a charge that would affect their parenting fitness.

Of course, if you are witnessing an immediate threat to your child’s safety then you should immediately call the police.  Courts can only change orders, which are just pieces of paper.  Pieces of paper don’t protect your children without proper enforcement.

Click here to learn more about filing a Complaint for Modification.

Post-Divorce Problems: Should my Child Support Change?

In our last post we explored reasons that there may be some inequities post-divorce that cannot be remedied.  Many decisions in a divorce agreement, such as property division, survive the Judgment and cannot be changed.

However, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support.

The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable. Although typically paid to the custodial parent, child support is also for the benefit of the child, not the parent. Therefore, you cannot give away your child's right to seek greater child support if there is a material and significant change in circumstances.

In order to modify child support you must file a Complaint for Modification or a Joint Petition for Modification.  If you are able to agree to a change with your ex (either directly, through mediation, or through collaborative negotiation) then you can file a Joint Petition for Modification of Child Support.  If you can’t agree, then you must file a Complaint for Modification which tells the court what has changed.
To succeed on a Complaint for Modification you must prove two things: first you must prove that there has been a "significant material change in circumstances;" and second you must prove that the change in circumstances warrants a change in the Order.

A "significant material change in circumstances" is simply explained as a change in your life that is big enough to have an effect on the factors that related to the original Order of the Court. For example, if the Order that you want to change is a Child Support Order, then you must demonstrate that there has been a change to the factors that affect a Child Support determination, such as the income of the parties, expenses of the parties or needs of the children. In addition, you must demonstrate that that change is significant. In Child Support cases a good rule of thumb for determining significance is whether or not the change in circumstances would result in a 20% change in the Child Support Order.

Click here to calculate your Child Support in Massachusetts.

Click here to learn more about filing a Complaint for Modification.