How Can I Change My Child Custody Orders or the Court Ordered Parenting Plan?

Generally, a couple who divorces or legally separates must make a determination regarding the physical and legal custody of their children and visitation rights, either by mutual agreement or court order. When an established child custody arrangement no longer works or is no longer desired, one or both parents may seek to modify custody. Where a parent is seeking to modify custody through the courts, the parent must generally be able to show that there has been a substantial change in conditions which warrants the modification.

Types of Custody

Upon divorce or legal separation, parents may either mutually agree on or a court may order an arrangement of custody for the former spouses' children. Custody may be legal, physical or some combination of both. Legal custody authorizes one or both parents to make important decisions about the child's upbringing. Physical custody is the right of one or both parents to have the child live with them. The parent with most time with the child per year, physical custody, is called the custodial parent, and the noncustodial parent is almost always provided with visitation rights. This arrangement is called the “parenting plan.”

Modification of Custody

Sometimes former spouses may wish to modify the terms of a child custody arrangement previously issued in their final decree of divorce or legal separation. The parents may modify the custody agreement with or without court approval, but without court approval, the new agreement may not be as reliable or enforceable. In issuing a modification of a child custody order, a court will almost always grant a mutually agreed upon modification. In a contested case, where only one parent seeks to modify custody or visitation, courts must consider what would be in the best interest of the child.

Changed Circumstances

In general, the state court which issued the original custody and visitation agreement has the authority to restrict, deny or otherwise modify the terms of the agreement. When one parent wishes to change an existing court ordered custody arrangement, they must show that there has been a substantial change in circumstances since the order and that they can provide a better environment for the child.

"Substantially changed circumstances" might include:

Significant changes in the lifestyle of one parent
A destabilized household
Changes in geographic locations
The child's preference to live with noncustodial parent

Requiring proof of a substantial change in circumstances since the custody award was issued helps to ensure the stability of custody agreements by preventing frequent and repeated modification requests.

Changes in Lifestyle

Generally, a substantial change in the lifestyle of one of the parents may justify a modification in custody and visitation arrangements. This becomes especially true where such a change in lifestyle threatens to or actually harms the child in some way. For example, if the custodial parent takes on a new night job that requires them to leave their young child at home alone, the noncustodial parent may wish to modify custody. Or, if the noncustodial parent begins abusing alcohol or drugs, the custodial parent may wish to petition the court to modify or eliminate the noncustodial parent's visitation rights.

Destabilization of the Household

Where an event occurs in the household of one parent that disrupts the stability of the home for a child, the other parent may seek a modification of custody or visitation. Examples of such devastating events might include the arrest of the parent for a violent crime, death of the parent, abandonment of the child or an allegation of sexual abuse by the parent. A modification might be granted where the noncustodial parent can prove that the custodial parent's household has become destabilized since the original custody or visitation order was issued.

Geographic Moves

Typically, the relocation of a custodial parent will constitute a change in circumstances substantial enough to merit a custody modification if the move is of a significant distance. The purpose of such a modification is to accommodate the needs and visitation rights of the noncustodial parent. This may be done by switching or alternating custody between the parents or by requiring the relocating parent to pay for visitation with the noncustodian. In some cases, a court may forbid the removal of the child from the state without first giving written notice to the noncustodial parent, thus giving them the opportunity to contest or modify the custody agreement.

Child Preference

In some instances, where a child develops a preference to live with their noncustodial parent, a court may grant deference to their request and modify the custody order. Typically, to consider a child's preference, the child must be "older" (e.g., 12 or above) and the child's reasoning must be sound (i.e., not the result of bribery by the noncustodian or because the noncustodial parent would be less disciplinary). In addition, a child's preference is most often only considered as one factor in most states in deciding whether to petition for a modification of the custody agreement.

Temporary Custody Modifications

A custody modification may also be sought for a temporary change in circumstances. For example, if a custodial parent is going to be out of the state temporarily or if they become seriously ill or injured, a court may issue a temporary modification of their custody. In such a case, the original custody arrangements may be restored when circumstances return to normal.

Is Child Abuse More Likely in New Relationships?

When your ex (or you) decides to move on with life and start a new relationship there are significant risks to the children.

Today more school children in the US have parents not married and living together than are living in traditional nuclear families. The net result is instability, neglect, and the likelihood that children will be in homes with adults who have no biological tie to them.

Children living in homes with unrelated adults are nearly fifty times as likely to die of inflicted injuries as are children living with their bio-parents. (Journal of the American Academy of Pediatrics, 2005). Children of single parents had a 77% greater risk of being harmed by physical abuse than children living with both parents (National Incidence Study, 1996). Children living in stepfamilies, or with single parents are at higher risk of physical or sexual assault than children living with their bio-parents (University of New Hampshire’s Crimes Against Children Research Center). Girls whose parents divorce are at significantly higher risk of sexual assault, regardless of which bio-parent they live with (Family Law, Washington and Lee University).

The person most often identified as a perpetrator of physical child abuse is the mother (usually single), next is the mother's new boyfriend, the step-father, and the biological father in that order. Something to consider before introducing your children to new potential mates. The rate of break-up for marriages involving minor step-children is around 70%, so most children will go through another divorce or breakup. The break-up rate for those who move in with existing children in the household without getting married is closer to 100%.

Watch for danger signs and emotional changes in your child, particularly when your ex is "getting on with life."

What Will Happen to Our Pets?

Animals are often tragic victims of divorce. All too often euthanasia of a once beloved pet is the result of family turmoil, either during the process or down the road when a new spouse has other philosophies and step-pet-parenting breaks down. Domestic violence often involves threats or even injuries to pets. Pets have been used as pawns in child custody fights.

An extreme case of abuse of the system happened a few years ago in California. A wife in San Diego went to the department of child support and in vindictive rage made a fraudulent claim for child support, naming the animals. By the time the legal dust settled husband had not only lost possession of his dogs, but he had seen his wages garnished for a few months for their support. In the ultimate indignity, as part of the property division he was ordered to pay the vet bill, the bill that included terminating the innocent animal’s lives when wife had decided they were too much bother and no further benefit to her.

In one case it came out at trial that neither party really wanted to keep the expensive show-quality Yorkshire terrier, but each wanted credit for the other party getting the retail value paid for the dog in the property settlement. The judge asked them to produce the animal in court. It turned out that the dog had never been effectively housetrained. He made the dog a ward of the court, took him home and bought a dog training book and housetrained the little Yorkie himself! Animals usually are not that fortunate.

Lawmakers in Wisconsin have introduced legislation in 2007 outlining how divorcing couples and judges should resolve disputes involving pets. This landmark bill would allow couples to specify visitation rights, and the right to move an animal out of state.

A noted veterinarian and attorney, John Scott, DVM, JD of Amarillo, Texas, supports the idea of codifying animal law in the family courts saying that "the concept of what's best for the child could transfer over to what's best for the pet. I would expect veterinarians to be called upon to testify which spouse took better care of the animal, paid more for its care and so on. It would be analogous to how we handle custody of children."

Under the proposed Wisconsin legislation when the judge can't pick a spouse to send the pet home with the judge can order the pet to be sent to a local humane society. Then whoever gets to the humane society first can then adopt the pet. That's crazy, especially if both show up at the same time. The humane society now has the problem instead of the court. Apparently, this part of the drafted law may require some change.

You may think that these types of situations are rare, and that pet custody is a non-issue in real life. Well, consider that a San Diego woman spent almost $150,000 in legal and professional fees during a divorce to win custody of her dog, "Gigi." A feuding couple in Maryland finally agreed to visitation only after a judge threatened to sell their 9-year-old Keeshond and split the proceeds.

Isn't it a shame that these situations have to be addressed in life at all? In the Bible, Malachi 2:16 lays it out: "I hate divorce," says the Lord God of Israel. Just as the children are often hurt in the process of divorce, so go the pets.

It's a crying shame.

How Does Divorce Affect My Inheritance Rights?

Most people are aware that a surviving spouse is usually entitled to inherit all or a large portion of the estate of a deceased spouse. Fewer understand the effect on estates if one spouse dies during a legal separation or after a divorce. After a divorce, many neglect to change wills that specify bequests to a former spouse or their beneficiary designations for life insurance and retirement accounts. State law may dictate what will happen in such situations. However, provisions and procedures can vary substantially from state to state. Additionally, federal law may be implicated, especially when pension and retirement accounts are involved.

Intestate Succession and Divorce

When a person dies without a will ("intestate"), state law determines how and among whom the estate will be divided. Based on a perception that estates passing under wills generally name the surviving spouse as the primary beneficiary, intestate succession laws reflect this and allocate all or a large portion of the estate to the surviving spouse. In most states, however, after and sometimes even during a divorce, spousal status is lost. Under New York law, the husband or wife is not considered a surviving spouse for purposes of intestate succession where a final divorce decree exists; the marriage was void as being incestuous; there is a decree or judgment of separation; or the spouse abandoned or failed in a duty to support the decedent.

In California, "surviving spouse" does not include those whose marriage has been annulled or dissolved; who have obtained or consented to a divorce then married another; or who were parties to a proceeding terminating marital property rights. Couples who, after a divorce, remarry their former spouse may still be considered spouses in California and other states, if they are still married at the time one spouse dies. In 1969, a Uniform Probate Code (UPC) was promulgated, and has since been adopted by approximately one-third of the states. The provisions of the UPC similarly eliminate as spouses for intestacy purposes those whose marriage has been annulled or terminated, unless they have remarried their former spouse.

In some states, while a divorce is pending, couples remain spouses for the purposes of intestate succession. As a result, if one spouse dies without a will before the divorce is final, the surviving spouse may inherit. Court cases have affirmed this, but also affirm that, after the final divorce decree, the former spouse may no longer inherit under intestacy laws.

Effect of Divorce on Wills and Other Death Benefits

In some states, a divorce or annulment automatically invalidates will provisions leaving property to the former spouse and/or designating the former spouse to act as executor, trustee, or in other capacities. Divorce may also deprive the divorced spouse of the right to a statutory, elective share of the decedent's estate (under state laws, a spouse may be entitled to a portion of a spouse's estate regardless of being omitted from a will).

In a New Jersey Supreme Court case, a husband died during the pendency of a divorce. The court ruled that the wife was no longer entitled to a division of property by the divorce court, because of the death, but also could not claim an elective share, because of the separation; the husband left his entire estate to children from a prior marriage. The lower court was, however, allowed to make an equitable distribution of marital property.

Under the UPC, all provisions in a will favoring a divorced spouse are revoked "as though the divorced spouse had died at the time of the divorce." The UPC also revokes all "revocable" designations, such as those described above as executor, etc., and may sever joint tenancy and community property interests. Some state laws further automatically invalidate bequests to and designations of any relative of the divorced spouse (except for children with the decedent). For example, bequests to children of the divorced spouse from a former marriage might automatically be eliminated or invalidated, as might designation of the divorced person's brother as executor or trustee.

This automatic revocation has further been applied in some states to beneficiary designations in certain retirement accounts and/or insurance policies and to bequests and appointments made in trusts. In other states, however, the trust must be amended to change or eliminate the bequests and appointments. However, if the decedent amended the will or other document after the divorce or otherwise reaffirmed an intent to continue to benefit the divorced spouse, that may counteract the automatic revocation.

The Egelhoff Case

As noted above, state laws sometimes void beneficiary designations of divorced spouses for life insurance and/or retirement accounts. A 2001 decision by the U.S. Supreme Court in Egelhoff v. Egelhoff considered the validity of such a Washington state law. While they were married, David Egelhoff designated his wife, Donna Rae, as beneficiary of the life insurance and retirement account he held through Boeing Company. The Egelhoffs subsequently divorced and David was allocated the retirement plan and life insurance in the property division. David died just two months later in a car accident, never having changed the beneficiary designations. Two of David's children by a former marriage sued to recover these assets for David's estate.

The trial court held that the insurance and retirement account were controlled by the 1974 federal "Employment Retirement Income Security Act" (ERISA), which preempted (took precedence over) state law on the subject. ERISA mandates distributions according to the plan rules, which, in this case had to be made only to properly designated beneficiaries under the plan. As a result, Donna was awarded the account and insurance. A court of appeals and the Washington Supreme Court reversed, holding ERISA did not preempt the state law that invalidated beneficiary designations after the divorce. The U.S. Supreme Court disagreed, finding that ERISA specifically preempted Washington and other similar state laws. The Court stated that the preemption was necessary for, among other things, uniformity in the treatment of retirement accounts throughout the U.S. Administrators could not be forced to make decisions based on inconsistent state laws.

How Does My Support Order Affect My Taxes?

Most divorces involve a division of property between the spouses. If there are children from the marriage, the parent not granted custody usually must pay monthly child support. In addition, one of the spouses may be granted monthly spousal support or spousal support. The resulting tax implications differ, depending on whether such payments are characterized as child support or spousal support.

In general, for federal income tax purposes, Spousal Support (commonly known as “alimony”) or Family Support is "deductible" from the income of the paying spouse and is includable in the taxable income of the recipient spouse. Child support is treated exactly the opposite: it is not deductible by the payor and is not included in the income of the recipient spouse. Property settlement transfers between spouses in a divorce are usually not taxable events.

Mischaracterization of Payments as Spousal Support

Since amounts paid as spousal support are deductible from income by the one paying, there is an incentive to maximize the amount of payments deemed spousal support, as opposed to nondeductible property distributions and child support payments. The recipient spouse may be in a much lower taxable bracket and agree to the plan. However, the IRS objects to attempts to mischaracterize child support or property divisions as spousal support, because of the tax effects.

Characterization of Payments as Family Support

Frequently a court will give the payor a tax break by ordering an undifferentiated payment of child and spousal support termed “Family Support.” The total amount paid is generally higher than the total would be under California guidelines because the tax consequences are used in the calculation of the support figure. More money is available for the support of the family when the higher income earner can take more tax deductions. This is usually a temporary order, an interim order that becomes superseded at the time the dissolution of marriage is final with child support and spousal supports being broken out separately in the judgment. Family support is treated like spousal support for tax purposes being taxable to the recipient and deductible for the payor.

What Effect Will Incarceration Have on the Family?

According to the Child Welfare League of America, an estimated 200,000 children have a mother in prison, and at least 1.6 million children have a father in prison. As such, many children have been forced to enter the foster care system, and there has been a significant increase in the number of children visiting their incarcerated parents.

Such overwhelming statistics have influenced federal adoption law and, more recently, played a role in a notable U.S. Supreme Court decision on the constitutionality of restricting prison visitation by the children of inmates

Adoption and Safe Families Act

With the goal of achieving prompt permanency plans for children in foster care, Congress passed the Adoption and Safe Families Act (ASFA) in 1997. The law requires states to move to sever a parent's right to a child after the child has spent 15 months in foster care.

As mothers are often their child's primary caretaker, ASFA has certainly affected the parental rights of incarcerated mothers, whose sentences prevent a timely reunification with their children. For example, under ASFA, a state would most likely file to terminate the parental rights of a mother serving five years in prison, where her children have been in foster care for 15 of the last 22 months. In fact, an incarcerated mother will often surrender her parental rights after her children have spent 15 months in foster care, so that her children can be formally adopted by their foster family.

When a State May Choose Not to File Termination Proceedings

Although the 15-month cutoff imposed by ASFA can have a harsh impact on incarcerated parents and their children, exceptions to the law allow caseworkers to examine individual cases for compelling reasons not to file termination proceedings, including:

When a relative is caring for the child
When the foster care agency has not provided appropriate services
When the agency documents that termination would not be in the child's best interests

In order for any of these exceptions to apply, however, the mother making a case for reunification must generally have regular contact with her caseworker and frequent visits with her child.

The Constitutionality of Restrictions on Visits to Inmates

The parental rights of inmates have also been affected by the U.S. Supreme Court holding in Overton v. Bazzetta (2003). In Overton, the Court upheld the constitutionality of Michigan regulations on visits to inmates, which limits who can visit prison inmates and allows for the suspension of a prisoner's visitation rights if the prisoner violates certain prison rules. In response to an overall increase in the number of visitors (including children) and related concerns about internal prison security problems, the regulations deny inmates the right to have visits from their children if their parental rights have been terminated. Furthermore, the regulations require all children permitted to visit to be accompanied by a parent or guardian.

The case involved a class-action lawsuit brought by Michigan prison inmates, who challenged the visitation regulations as violating the following constitutional rights: • The right of free association under the First Amendment • The right against cruel and unusual punishment under the Eighth Amendment • The right to due process of law under the Fourteenth Amendment

The case involved a class-action lawsuit brought by Michigan prison inmates, who challenged the visitation regulations as violating the following constitutional rights:

The right of free association under the First Amendment
The right against cruel and unusual punishment under the Eighth Amendment
The right to due process of law under the Fourteenth Amendment

Ultimately, the Court held that the visitation regulations did not violate the inmate's constitutional rights, reasoning that "many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner." Further, the Court specifically justified the restrictions on visitation by children based on the rationale that "the regulations bear a rational relation to [the state's] valid interests in maintaining internal security and protecting child visitors from exposure to sexual or other misconduct or from accidental injury." While directed specifically to the constitutionality of Michigan's regulations, the Court's decision will influence the visitation rights of inmates across the nation.

The tragedy of curtailment of visitations and parental rights of inmates is that the child suffers an additional blow to the psyche from a psychological cut-off from a parent, and the inmate is further alienated from society, increasing the risk that the inmate will be returned to prison in the future. Some of the best programs for rehabilitation of inmates are parenting programs. Such programs support the incarcerated parent in taking responsibility for being a parent, for giving love and affection and growth to the child, and teach skills that are equally as relevant to employment as to parenting.

How Will My Retirement be Affected by My Divorce?

It has been estimated that more than one half of all first marriages end in divorce; the number of failed marriages is even higher for second marriages. One major issue in most divorces is the division of property. Commonly, a large portion of the marital assets consist of rights in or payments from one or more pension plans.

Pension Plans and ERISA

Divorce and division of property are generally controlled by state law. However, when state law contradicts or is inconsistent with federal law, the federal law "preempts" the state law; federal law controls the outcome. In 1984, Congress passed the Employee Retirement Income Security Act (ERISA), which governs most private pension plans (government and some other plans are not covered). Divorce and division of property are generally controlled by state law. However, when state law contradicts or is inconsistent with federal law, the federal law "preempts" the state law; federal law controls the outcome. In 1984, Congress passed the Employee Retirement Income Security Act (ERISA), which governs most private pension plans (government and some other plans are not covered).

Federal law prohibits the assignment of pension benefits in ERISA plans. This appeared to include transfers to a spouse during divorce, regardless of a state court decision on division. To remedy this, the Retirement Equity Act of 1984 (REA) established an exception to the rule through use of a "QDRO."

Qualified Domestic Relations Orders (QDRO) and Pension Plans

Often in a divorce, the state court will issue a domestic relations order (DRO) or other judgment dividing the marital property. If the division of an ERISA pension plan interest is part of the order, however, a QDRO must be prepared and signed by the court (or sometimes another entity – especially in the case of child support) to ensure that the order will actually be enforceable and recognized by the plan administrator, and the division will not lead to unwanted tax consequences.

A QDRO creates or recognizes an "alternate payee's" right to receive all or a portion of the plan benefits, or actually assigns that right to the alternate payee. An "alternate payee" may only be a spouse, former spouse, child, or other dependent of the plan participant.

Types of Retirement Plans

Whether a pension plan is divisible as a marital asset depends on local law and the terms of the plan itself. Defined benefit plans, defined contribution plans and IRAs are all subject to division in a divorce:

Defined Benefit Plan: Usually a retirement plan through an employer where the employee becomes entitled to receive a defined sum after being employed for a specified number of years ("vested"). The actual amount paid after retirement is usually based upon salary and years of service at the time of retirement. Such plans are more difficult to split, as the current worth of such a plan is difficult to calculate.
Defined Contribution Plan: Typically a savings, 401(k) type or profit sharing plan through an employer. Such plans are easier to divide, as the current value is usually obvious.

QDRO Form

ERISA, as amended by REA, defines a DRO as a judgment, decree or order which both:

Relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child or other dependent of an ERISA plan participant; and
Is made pursuant to a state domestic relations law, including community property if the state recognizes community property law.

ERISA requires that, to be effective, a QDRO must be a judgment, decree, or order of a court that meets the above requirements and contains the following information:

The name and last known addresses of the plan participant and each alternate payee;
The name of each plan to which the QDRO applies;
The dollar amount or percentage (or method for determining the dollar amount or percentage) of the benefit to be paid to each alternate payee; and
The number of payments or period of time to which the QDRO applies.

Provisions That a QDRO Must Not Contain

Payment of any benefit or any payment option to the alternate payee that is not authorized by the ERISA plan
Payment of increased benefits, determined based on actuarial value
Payments to an alternate payee that are already designated for another alternate payee in an earlier QDRO

QDRO Process

ERISA plans must establish a reasonable, written procedure for evaluating a QDRO and often provide a guide for what is necessary and acceptable. Some even provide a model QDRO form. The plan administrator must approve the QDRO before it becomes effective.

The QDRO may first be submitted to the court for approval and signing, but most seek prior approval by the plan administrator, to save the effort and expense of having to go back to the court to obtain another QDRO, if the plan administrator rejects it. The plan administrator is obligated to give explanations for any rejection; no fee may be charged for considering the QDRO. The plan administrator's rejection may also be appealable in federal court.

After the QDRO has been accepted by the plan administrator and approved and signed by the court, it becomes enforceable in federal court by the alternate payee.

Kari M. Marchant, Esq.