What is the burden of proof needed for a modification?

Divorce Attorney Angela FoyQuestion:

My ex and I have joint custody of our two children. Since then we have both remarried. I am listed as the residential parent and have moved 10 miles out of the area, but still kept the house so the kids could continue going to the same school. The kids spend most of the time in her area, which is outside of the school district but close to where all their friends are.

Suddenly she is threatening to take me back to court for full custody and to have child support initiated. Can you tell me what legal grounds she may have and what I may encounter?

Answer:

While I do not know what additional factual allegations she may allege, I can give you some general guidelines about the law and what her burden would be to prove if she filed a motion.  I do not practice in Ohio, so I can only speak in generalities.

The court may modify the terms of the parenting plan in general if it finds that a substantial change in circumstances has occurred since the last order was issued and that the change is in the child’s best interest. The court is required to retain the prior decree unless a modification is in the best interest of the child and one of the following applies:

(i)             The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.

(ii)           The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.

(iii)          The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

It generally takes more than a parent remarrying to assert a change in circumstances. Usually changes in finances are also not enough. Additionally, while you have moved, it does not seem that you have moved very far and continue the residence so that the children’s schools are not affected.  Courts are generally skeptical when a modification motion comes so close, within 2 years, of the divorce.  Some courts also place a higher burden if the motion is brought so close – then the parent seeking the change must prove the that the current arrangement is harmful to the child.  I do not know if that is the case in your jurisdiction.

If the current arrangement has generally been going well, that will be your strongest argument.  In essence, there is no need to fix what is not broken.  The court presumes that your agreement in the dissolution was in the children’s best interest and will likely look for a big change in circumstances to be swayed from that initial decision.

Most often, the amount of child support a court would order is tied to the amount of time each parent spends with the children and the amount of income that you each earn if you have a shared parenting order.  It sounds like her motivation may be financial.  Without more information about each of your finances, it is unclear how much that would be if the order is changed.

Your options, and her success on a motion for modification, are dependent on the specific orders in your case, the circumstances of your situations, and your jurisdiction.  I do not practice in Ohio, so I cannot inform you as to their specific laws.  You should contact a domestic litigation attorney licensed in Ohio to explore your options.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.

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