Life is always moving and changing. Sometimes those changes create a need to modify court orders concerning parenting responsibilities or support obligations. Loss of a job may mean you can’t afford to pay the ordered support for your child or former spouse. A new job in another state may require a change in parenting time (visitation) schedule. When circumstances require changes of this nature, Ohio divorce attorney Melissa Graham-Hurd can help you negotiate changes or support your case in court, or by out-of-court settlement. With over 25 years of experience in family law matters, Ms. Graham-Hurd excels at making court order modifications as simple and painless as possible.
Parents may file motions to reallocate Parental Rights and Responsibilities (change custody), or to modify Parenting Time (visitation) with the court. Motions to modify parenting (custody and visitation) orders should be filed with the same court that granted the Allocation of Parental Rights Order or Shared Parenting Decree, which retains continuing jurisdiction over all issues concerning the children until they are over the age of majority (18 years old in Ohio) and have graduated from high school (or sometimes longer if the child has a physical or psychological impairment that makes them incapable of supporting himself or herself). The threshold determination before modifying the allocation (custody) orders is whether there has been a significant change of circumstances in the lives of the children or the residential parent(s), and whether a change of residence is necessary to serve the children’s best interests. Courts will not change custody from one parent to the other, or from shared to sole, for small reasons. Parents may agree that changes to their shared parenting plans take place, or that allocations should change. Experienced counsel is mandatory for determining whether circumstances have changed enough to seek a change of custody by action in court. Family law attorney Melissa Graham-Hurd can help you seek changes to serve your children’s needs.
Continuing orders for spousal support (alimony) can be modified only if the decree of divorce or dissolution reserves jurisdiction to make changes in the future. The changes of circumstances from the time of the decree must be substantial, not slight or inconsequential, and must not have been contemplated at the time of the prior order.
After March 22, 2013, the law will change to clarify: a change in the circumstances of a party includes, but is not limited to, any increase or involuntary decrease in the party’s wages, salary, bonuses, living expenses, or medical expenses, or other changed circumstances so long as both of the following apply:
(a) The change in circumstances is substantial and makes the existing award no longer reasonable and appropriate.
(b) The change in circumstances was not taken into account by the parties or the court as a basis for the existing award when it was established or last modified, whether or not the change in circumstances was forseeable.
In determining whether to modify an existing order for spousal support, the court shall consider any purpose expressed in the initial order or award and enforce any voluntary agreement of the parties. Absent an agreement of the parties, the court shall not modify the continuing jurisdiction of the court as contained in the original decree.
The subject of modification of spousal support is a very complex one, subject to heated debate in and among Ohio’s appellate districts, and is one of the most difficult subjects of law to master. Experienced counsel such as Attorney Melissa Graham-Hurd is a must if you believe that your spousal support orders should change.
Motions may also be made to change the financial responsibilities concerning the children, such as child support, tax exemptions, healthcare insurance, and responsibility for uninsured healthcare needs. If you lose your job or some other significant change in circumstances arises, it may be necessary to change the amount of child support, and this requires either requesting a modification of the support order from the Child Support Enforcement Agency (CSEA) or filing a Motion to Modify the Court Order with the court who made the original support order. If you do not request a change in support, it will remain the same, no matter how circumstances have changed since your divorce decree, unless you file a motion or request the CSEA to modify the support. Requesting a modification from the CSEA usually takes a longer than filing a motion in court.
When a post-decree motion concerning parenting time (visitation) or the allocation of parental rights and responsibilities (custody) is filed, there is an Initial Hearing set by the court. At that hearing, the magistrate will first determine whether the parents agree to the requested change. If there is no agreement reached, the magistrate will refer the case to In-House Mediation with the mediation magistrate (always someone different from the magistrate assigned to the case) and/or a social worker from Family Court Services. Mediation seeks to reach agreement on all issues or some issues concerning parenting the children (not the financial issues).
After in-house mediation, there will be a second initial hearing. If there has been a full agreement, if approved by the parties after consulting with their attorneys, the magistrate of record determines whether the agreement reached is in the children’s best interests and if so, the agreement becomes a court order.
If there is not a full agreement reached at the mediation session, the magistrate will then decide case management issues, determining what steps are necessary to hear and decide the matters raised in the motion. The magistrate may refer the case to Family Court Services (with a social worker different from the person at the in-house mediation) to provide an evaluation and recommendations concerning the physical living arrangements for the child and parenting issues, the court may assign a Guardian ad Litem to perform home studies, interviews with the parents and the children, and make recommendations in the child’s best interests. The court may refer the parents to community support services, psychological evaluations, substance abuse testing and evaluation, or any number of providers of services appropriate to the case. The goal of the case management phase of the case is to provide the court with all necessary information so that it can make a determination in the child’s best interests.
Once the case management steps are concluded or at least well underway, a Settlement Conference is held with the same magistrate. The purpose of that court hearing is to determine whether the parties can agree with the recommendations of the Family Court Services social worker, evaluative psychologist and/or GAL, or whether they can come to a negotiated agreement. If no agreement is reached, the case then proceeds to Evidentiary Hearing, which is really a trial, in which testimony and documentary evidence is produced and the magistrate makes a Decision. If there is no objection to the magistrate’s decision, it is effective as soon as it is filed.
If either party believes that the magistrate made an error in the decision, an objection to a magistrate’s decision can be filed within fourteen (14) calendar days after the order is file-stamped, and must contain specific facts or law supporting the request to overturn the decision. There is an automatic stay of the magistrate’s decision unless a separate motion is filed and the judge approves a separate order making the decision effective despite an objection being filed. A transcript of the hearing before the magistrate must be filed with the memorandum on the objection. There will be a charge for the transcript by the court reporter. The judge will decide whether the magistrate was correct or not, and issue a Finding.
When life changes, and you have a need to modify court orders concerning parenting responsibilities or support obligations, Ohio divorce attorney Melissa Graham-Hurd can help you negotiate changes or support your case in court, or by out-of-court settlement. With over 25 years of experience in family law matters, Ms. Graham-Hurd excels at making court order modifications as simple and painless as possible. Attorney Melissa Graham-Hurd will work with you to achieve resolutions in a manner that allows you to protect your rights while also maintaining a civil relationship with the other parent for the sake of the children. Contact Ohio divorce attorney Melissa Graham-Hurd to schedule an initial consultation.
THIS INFORMATION IS INTENDED TO BE A BRIEF OVERVIEW OF MODIFICATION PROCESS AND IS NOT INTENDED AS LEGAL ADVICE ON YOUR PARTICULAR CIRCUMSTANCES. IT IS ONLY INTENDED TO ASSIST YOU IN UNDERSTANDING THE PROCESS.
IF YOU SHOULD HAVE ANY QUESTIONS, PLEASE DO NOT HESITATE TO CALL THE OFFICE TO SCHEDULE AN APPOINTMENT – 330-996-4099.