In divorce and child custody situations, the custodial parent is the one who was granted the most responsibility in caring for the child. They may have sole physical or legal custody. As such, the custodial parent typically receives child support payments from the noncustodial parent. These payments are intended to provide for and assist with the expenses associated with raising the child, such as food, shelter, clothing, medical care, and education.
The custodial parent has the legal right to spend child support payments in the best interests of the child, or how they see fit. However, they also have the legal responsibility to use those funds appropriately. If the custodial parent does not spend payments in a way that benefits or provides for the child, they could be charged with neglect, or even child abuse.
Further, the custodial parent also has a legal obligation to spend child support payments for the child’s expenses, and not their own. Thus, child support payments cannot be used for just anything, as this would be unfair to both the child and the noncustodial parent who is making the payments for the benefit of their child.
If the custodial parent is financially irresponsible, and is misusing child support payments, the noncustodial parent may be able to have the child support order modified. This can be rather difficult, and the parent may be required to first file an abuse or neglect charge. However, a court may modify the payments if they can determine that the modification is necessary and justified. Above all else, all decisions must be balanced with what is in the child’s best interests. Additionally, the parent seeking the modification of the child support payments must prove to the court that there has been a significant change in financial circumstances. This would prove that modification is in fact necessary.
As previously mentioned, in order to change a child support order, the parent seeking the change must petition the court for an order modification. Further, they must prove to the court that a modification is both necessary and in the best interest of the child affected. Generally, a modification would be granted if there has been a change in circumstances that would make the existing amount of child support payments unfair.
It is important to note that it is generally difficult to modify a child support order because the parents are legally responsible for the welfare of their child, and the courts take that responsibility seriously. Some of the common reasons for a change in child support payments include:
- Loss of job;
- Increased health insurance payments;
- Additional, special needs of the child;
- Unexpected or increased educational expenses;
- Increased income of the other parent; or
- Reduced income that “deviates substantially” from the state’s child support guidelines.
Of course, if you can prove that the custodial parent is using the child support payments irresponsibly, you may be able to have the custody order modified. However, as previously mentioned, a neglect or abuse charge is often required first.
Because of a custodial parent’s financial irresponsibility, it may be possible to have custody orders modified. The noncustodial parent may be able to argue to the court that the other parent is not responsibly caring for the child, and that a change in custody would be in the child’s best interest. This may be granted by proving a significant change in circumstances, as discussed above.
Some of the other common circumstances that would lead to seeking a change of custody include:
- The noncustodial parent’s work schedule changes in such a way that they are better suited to primarily care for the child;
- The noncustodial parent has moved closer to the child and is now able to care for the child;
- The child prefers the other parent and is old enough to state and defend such a preference;
- The custodial parent is otherwise irresponsible, such as being unable to get the child to school, substance abuse, physical abuse, etc.;
- The child’s main home environment is poor; or
- The child is struggling academically under the care of the custodial parent.
Once again, it can be difficult to have an order modified. This is because the court typically ensures that the original order is best suited to the specific family and circumstances. It is important to prove that a new custody order will actually better meet the child’s physical and emotional needs. Each jurisdiction will have their own set of criteria when determining whether to modify a custody order.
Generally, in order to petition for a court hearing in order to change custody, the requirements include:
- Filling out relevant court forms and having those forms reviewed by your attorney;
- Filing those forms with the court clerk;
- Serving papers to the other parent;
- Acquiring your court or mediation date; and
- Attending the court ordered mediation or court hearing.
If you are wishing to change your child support order, or your child custody order, it is in your best interest to consult with a skilled and knowledgeable family law attorney in your area. It is important to remember that you will need to prove both that the custodial parent is behaving irresponsibly, and that you are better suited to parenting the child. Further, you will need to prove that because of the other parent’s financial irresponsibility, a change in custody is in the child’s best interest.
An experienced family law attorney will be able to assist you in understanding your state’s specific laws, as well as advise you on your best course of legal action. Additionally, they will be able to represent your interests in court, as needed.