kidsMODIFYING (CHANGING) YOUR CHILD SUPPORT ORDER

If you have a current child support order which has not been modified for three years, or if there has been a significant change of circumstances such as an income change, yours or the other parent’s, you can seek a modification of your support order.

Each state has a Child Support Guideline that uses a mathematical formula to determine the amount that should be awarded. The two most common types are (1) combined income of both parents or (2) a percentage of the non-custodial parent’s gross or net income.

Under federal law CFR 303.8(c)(2), state government child support agencies are required to review cases for modification every three years. States are very backlogged and often do not act every three years unless you request this service. Since orders are based on a parent’s ability to pay, you may have an order that is not reflective of the non-custodial parent’s current income.

Either parent can seek a modification order, payment amounts can be increased or reduced.

  • Reasons to Ask for a Deviation, upward or downward from the guidelines
  • The Steps to Obtain a Modification
  • What To Do If the Court Decides Against You

CHILD SUPPORT GUIDELINE DEVIATIONS

Child support guidelines are reviewed every three years in each state by the state government child support agency or State Court. When determining the amount of support to be paid the following are usually considered and can be used as reasons to deviate (get additional support or pay less support) from the guidelines:

  • Number of children
  • Assets and income of both parents
  • Percentage of shared responsibility (time spent) by the children with each parent
  • Other children either parent may have and other dependents
      • Special needs of the child such as medical condition, schooling, disability, special child care needs…

STEPS TO OBTAIN A MODIFICATION

      • Ask a government agency to administratively review your case or have a private attorney file a motion with the court for a modification; or represent yourself in court.
      • Once you are notified of a hearing, either court or administrative, both parties should be required to provide income information (i.e., tax returns, pay stubs, bank account information, etc.)
      • It is very important that you check with the government child support agency, or your private attorney, to make sure that they have received adequate information about the non-custodial parent’s real income before the hearing. The government child support agency has the power to do administrative subpoenas to gather income and asset information from the parent’s employer, bank, etc. Private attorneys can subpoena the information through the court. Without adequate information gathered before the hearing you have little chance of getting a fair order. It is not enough to hope that the non- custodial parent will bring documents with them to the hearing or be totally truthful if they testify.
      • At the hearing, you will both have the opportunity to present your financial information and the judge or hearing officer will make a decision based on the information provided. The administrative hearing officer and/or the court are required to follow the child support guidelines unless they put in writing in the order the reason they are “deviating.”

WHAT IF THE COURT DECIDES AGAINST YOU

If the hearing was held in front of a referee, master, or commissioner, you can file an objection, exception or appeal. There will be a deadline for filing, so check with your local Clerk of Courts, government child support agency staff, or private attorney about the time limits.

Any objection, exception or appeal can be filed by you, the IV-D attorney, or your private attorney. It should include your objection and a statement of why you object and a request for what you want.

If the hearing was held in front of a judge, you must file an appeal. You will probably need an attorney for the appeal. A government child support attorney or private attorney can assist you.

Remember, you have options. Use them! The appeals procedure is usually as follows:

    1. File a written appeal (objection to the referee’s, master’s or commissioner’s) report. In this document list why the order should not stand, such as wrong arrears listed, more evidence available, child support guidelines not followed….
    2. Usually a hearing is held about the objection or the judge overrules or upholds decision of the referee (master, magistrate, commissioner).
    3. A Judge’s decision can be appealed in State Appellate Court. You will probably need an attorney to do this and you must have a good reason such as the judge did not follow the law or consider all the facts in order to win. If you need legal representation, try the Bar Association for attorneys who take on worthy cases pro bono (for free) or a local law school clinic or legal aide if you are low-income.

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