Parents that are experiencing co-parenting issues often wonder, “Should I file a motion to modify parental visitation and child support?” Unfortunately, this question does not have a one-size-fits-all answer. Instead, the answer to this common question often depends on each case’s unique facts. To better understand modifying parental visit and child support, let’s address some of the requirements and potential issues.
BIG CHANGE IN CIRCUMSTANCES IN ALBUQUERQUE,NEW MEXICO?
The term “permanent” is often used in family court. For instance, the court may order “permanent” child support. The court may also order “permanent” visitation.
For practical purposes, the term “permanent” usually means that the issue has been heard and decided. On the other hand, the term “temporary” generally means that the court made a quick decision regarding an issue. Despite this quick decision, the court still needs to fully explore the issue through an evidentiary hearing. After the evidentiary hearing is complete, the court then enters a “permanent” order.
With that said, permanent does not mean that the issue is forever written in stone. Instead, almost any “permanent” order can be modified based on a major change in circumstances. For instance, “permanent” child custody and parental visitation orders can be modified based on a major change in circumstances. A major change in circumstances may include:
- A finding of abuse/neglect;
- Remarriage;
- Parent moving to another city or state;
- Child reaches a major milestone such as entering grade school; or
- Substance abuse or mental health issues that poses a danger to the child.
A major change in circumstances must occur before a custody or visitation order can be modified. Based on this requirement, a motion to modify will be denied if a big change in circumstances has not occurred since the order was entered.
Some judges are picky and will routinely deny a motion to modify unless a really big change in circumstances has occurred. On the other hand, some judges are more lenient and will define almost any change as the necessary major change. Like other legal issues, the decision varies from judge to judge.
MATERIAL CHANGE IN CIRCUMSTANCES TO CHANGE CHILD SUPPORT
Child support is like parental visitation and child custody. Specifically, child support can only be modified based on a big change in circumstances. Unlike child custody and parental visitation, however, the definition of major change in circumstance is clear cut with child support. For example, child support can only be modified when two factors are present:
- More than one year has passed since the current child support order was entered; and
- Applying the updated figures causes the monthly support to increase or decrease by 20%.
In sum, both visitation and support can only be modified based on a big change in circumstances. This means that a motion to modify will be denied if a big change in circumstances has not occurred. Accordingly, a motion to modify should only be filed when a clear and substantial change in circumstances has occurred since the current order was entered.
For more information on New Mexico child support, click HERE.
DO YOU HAVE ALL OF THE NEEDED INFORMATION?
It is dangerous to file a motion to modify without all the necessary information. Inexperienced lawyers, or parent’s that are not represented by an divorce attorney, tend to rush filing a motion to modify child support. These anxious litigants tend to file a motion to modify before receiving updated pay information.
New Mexico law permits both parents to request updated income information each year. It is important to receive updated pay information before filing a motion to modify child support. Updated pay information is essential because:
- The other parent’s income may have increased or decreased; and
- The updated child support largely depends on each parent’s updated pay.
Are you considering filing a motion to modify parental visitation and child support? If so, ensure that the necessary information has been reviewed before filing a motion. Filing a motion to modify without all information is like walking down a dark alley without a flashlight. There may be an unpleasant surprise at the end of the road.
TIME SINCE LAST ORDER WAS ENTERED
The likelihood that the necessary change in circumstances has occurred increases as time passes since the last order was entered. For example, judges usually do not want to receive a motion to modify shortly after an issue was decided.
Child support law is clear that one year must pass since the current order was entered. On the other hand, child custody and visitation time limits are less clear. With that said, filing a motion to modify immediately after a decision has been made likely will result in the motion being dismissed. The motion likely will be dismissed – unless something major has occurred – because the necessary, substantial change in circumstances has not occurred.
REALISTIC EXPECTATIONS — SHOULD I FILE A MOTION TO MODIFY PARENTAL VISITATION AND CHILD SUPPORT?
The decision to file a motion to modify should be balanced with the likely results. For example, a motion to modify custody – requesting sole legal custody – likely will fail unless a huge change in circumstances has occurred.
New Mexico courts favor predictable and consistent parental visitation schedules. Because of this tendency, the court will resist making major increases/decreases to court ordered vitiation unless a major change has occurred.
Ultimately, the court’s decision will be based on the child’s best interests. When determining the child’s best interests, judges believe that children are best served by having a stable and consistent relationship with both parents.
COST VERSUS BENEFIT OF FILING A MOTION TO MODIFY
Litigation can get very expensive. A case’s expense increases as litigation increases and becomes more contentious. For instance, a judge is more likely to appoint a Guardian Ad Litem or 11-706 Expert when multiple motions have been filed. Moreover, the likelihood of an expensive expert becoming involved in the case increases as the allegations become more serious. For instance, a GAL is likely to become involved with highly contentious cases that involve:
- Major co-parenting issues;
- Allegations of abuse or neglect; or
- Claims of mental health issues.
Parents should consider the realistic costs of litigation before filing a motion to modify. In doing so, the potential costs should be balanced with the likely outcome. A parent that fails to balance the potential cost with the likely outcome is usually displeased with the outcome. In other words, the financial cost of the motion may outweigh the benefits received.
(505) SANCHEZ CAN ANSWER “SHOULD I FILE A MOTION TO MODIFY PARENTAL VISITATION AND CHILD SUPPORT IN ALBUQUERQUE,NEW MEXICO?”
Knowing when to file a motion to modify parental visitation and child support requires legal knowledge and experience. Matthew Sanchez has handled divorce and custody cases in courthouses across New Mexico, including: Rio Rancho, Los Lunas, Belen, Gallup, Santa Fe, Estancia/Socorro. Speak with a skilled and successful New Mexico divorce and child custody attorney. Speak with (505) SANCHEZ.
Should I file a Motion to Modify Visitation and Child Support?
