Motion to Modify Child Custody (and Support)
(Although not always the case, modification of child custody may require modification of child support.)
The parenting plan ordered by the court for your child may need to be revised as your child’s circumstances change. This may be accomplished either informally or formally. First, consult the other parent to determine if the changes may be agreed upon. It is not necessary to go to trial or have a contested hearing to make a simple change to the parenting plan if both parents agree.
Parents may agree to an informal simple or minor change. Such simple or minor changes may include a change in days, times or exchange location. In some cases a parent may want a more major change, such as where the child resides the majority of the time. This would require a new court order to be binding. Unless the agreement is formally filed with the court and approved by the court the prior parenting plan remains in effect.
If an agreement with the other parent is not possible and you have a contested case you are strongly advised to consult a lawyer to determine whether modification of the parenting plan is advisable.
A motion to modify is the pleading filed with the court to make changes in the best interest of your child. Changes to the schedule of parenting time (visitation) may be anticipated as a child grows, goes to school, and engages in more extra-curricular activities. Changes to the child custody and visitation schedule may make a modification of the amount of child support necessary. Some changes are sought to make the parenting plan more workable or to address new concerns for the child’s welfare. Modification of the parenting plan will focus on circumstances of the child and/or child’s custodial parent that have changed since the last court decision. Events or concerns heard by the court in the past will not be reconsidered by the judge. Changes in the physical custody of the child are more difficult to obtain by a court. By law, a change of custody requires specific findings that consider more than the wishes of the parent and the child. Requesting a change simply because a parent thinks the child wants to live with that parent may not satisfy the legal requirements. Requesting a change simply because you and/or the child does not like the parenting time (visitation) may not satisfy the legal requirements for a modification.
How is a parenting plan modified by agreement?
When parents agree on the changes to be made to the parenting plan they may file their agreement (stipulation) for modification with the court. A stipulation means both parents agree the court should make the change. The court may grant the request without a formal hearing depending on the nature of the change. The parents secure their agreement by a judgment so their agreement becomes binding. You also may ask a lawyer to help you with part of the process. Even if you have limited resources to pay a lawyer you can still receive help from a lawyer. Court rules allow a lawyer to help a party with certain specific tasks without handling the entire case for a party. This is called Limited Scope Representation. A lawyer providing limited representation usually will charge a fixed fee or charge by the hour. A lawyer providing limited representation could draft a Motion or Stipulation, review the Motion or Stipulation after it is completed, draft a parenting plan, calculate child support, appear in court at a hearing with you, draft a Judgment, or review a Judgment after it is completed.
How is a parenting plan modified when the parents are not in agreement?
When parents disagree about modifying the parenting plan, the matter is “contested.” The procedures for a contested hearing apply. The court will require the parent requesting the change to present evidence. Evidence is necessary to meet the legal burden of proof that the change is required. The responding parent may also introduce evidence. The burden of proof required depends on the type of changes sought. This may be legally complex. You will want to consider hiring a lawyer to present your case to be effective in a contested hearing.
Even after legal proceedings have started, the parties should explore opportunities to settle contested issues. A case may be settled at any time without the court making the decision. The parents may discuss the case and reach a resolution themselves. It is better for your child when parents can agree about whether to make changes to the parenting plan. Most cases do settle, rather than go to trial. Mediation is available at any time. The judge can and often will request that the parents meet with a mediator before hearing a contested motion to modify the parenting plan.
What court can grant a modification to the parenting plan?
A court may only grant modification of a parenting plan if they have authority (jurisdiction) over the issues and the people involved. Missouri and most other states and territories of the United States participate in a uniform law that establishes the jurisdiction of a court to modify a parenting plan. If both parents and the child continue to live in the state where the court entered a judgment establishing the parenting plan, then that state has “continuing jurisdiction” to make changes to the exclusion of all other states.
In Missouri, custody and access (visitation) issues are heard in the same circuit court that entered the parenting plan even if a parent or child moves to a different circuit within the state. When a parent or child moves out of state or the parenting plan was ordered in another state, the laws about jurisdiction become very complex. You should consult a lawyer to determine whether a particular court may hear your case in these circumstances.
What are the steps in a modification?
• Filing of Motion
• Service of Summons
• Completion of litigant awareness program
• Completion of parent education program
• Pre-trial hearing
• Entry of Judgment
Filing a stipulation for modification of the parenting plan:
The Motion to Modify is a formal pleading to the court which must be filled out completely and verified (sworn to before a notary public) before it can be filed. This means both parents swear or affirm that the facts contained in the motion are true and sign the motion before the notary. Most banks have notaries that can do this for a small fee.
You also must file these forms: Confidential Filing Information Sheet (Form CAFC067), Family Court Information Sheet (Rule 55.05 statement of jurisdiction over children), Proposed Parenting Plan, Certificates of completion of the Litigant Awareness Program and a parent education program, Form 14 (if child support is changing), and a proposed Judgment on Stipulation. These forms are available for download from this site at the conclusion of this Litigant Awareness Program. Check with your local court to see if additional forms are necessary.
Ask the court clerk whether it will be necessary for you to request a hearing date or whether the judge will consider your motion without a hearing.
What will it cost to file?
Filing fee information from your local court may be posted online. Otherwise, contact the circuit clerk at your local courthouse. Some circuits do not charge a filing fee for stipulations for modification.
Filing a contested motion for modification:
The Motion to Modify is a formal pleading to the court which must be filled out completely and verified (sworn to before a notary public) before it can be filed. This means you swear or affirm that the facts contained in the motion are true and sign the motion before the notary. Most banks have notaries that can do this for a small fee. Your case may be delayed if these important steps are not followed.
There are standard forms that must be filed along with the motion so the court has enough information about you to review the circumstances of your case before a hearing. These forms usually include a Confidential Filing Information Sheet, Proposed Parenting Plan, and certificates of completion of the Litigant Awareness Program and a parent education program. Check with your local court to see if additional forms are necessary. You will want to consider hiring a lawyer if you have a contested case.
What if I cannot afford the filing fee?
The court may waive filing fees. If you cannot afford the court filing fee, you may file an application asking that the fees be waived. This is sometimes called In Forma Pauperis (in the manner of a poor person). This form is available for download or you also may ask the court clerk for the application form. You will have to provide the court with detailed financial information under oath so the judge can decide if you are eligible for a waiver.
Do I need to have a hearing?
If your case is agreed upon (i.e., non-contested), check with the court clerk to determine if a hearing is required. You can hire a lawyer for the specific task of appearing with you at the hearing.
How is a hearing scheduled?
In Missouri, the court clerk will schedule hearings. In some circuits, a litigant will not be placed on the docket automatically, but will need to request a hearing to get on the docket. You should check with your local court for the applicable procedure.
Why do I have to go to the parenting education program if I have an agreement with the other parent?
Some local court rules require the parents to complete a parenting education program in modification cases. The program will raise awareness of the benefits of cooperative parenting, the best interest of your child and resolving disputes.
What is required for my hearing?
A parenting plan, Form 14 (if child support is being changed), and a proposed judgment will be required. Please check with the court clerk to determine what other forms are needed and how many copies you should provide.
What do I need to do the day of my hearing?
• Call the court clerk prior to the hearing. You must call the court clerk’s office to make sure all required forms are on file, the other parent has been served, and the hearing is still set.
• Read and organize all documents. Being familiar with the documents of the case will help you reach a satisfactory outcome.
Create an outline/brief summary of the case. This will help in the organization of the case. If you go unprepared then you may forget important points of your case.
• Find out in advance where the court house is and the specific courtroom where your case is assigned. When you arrive at court, check-in with the division your case is assigned to.
• Wear appropriate attire for the courtroom. Wearing clean, business casual attire (collared shirt, blouse, sweater, khaki/chino style slacks, skirt, dress, appropriate shoes, sandals) is sufficient.
• Arrive at court early. Remember, courts have tight security! It may take a while to get in the building. The judge will not appreciate anyone being late for a hearing, so give yourself plenty of time to get through security and to make your way to the courtroom.
• Make sure your witnesses show up for court. This is important so you can get the information onto the record. Be sure that the “return of service” affidavit is on file to show that the witnesses subpoenaed were notified to attend court.
• Before you go into court make sure you turn off all electronic items (i.e., cell phone, pagers, etc.). Interruptions such as ringing cell phones are not appreciated by the court.
• Dispose of any food or drinks before you enter the courtroom. It is common court etiquette to leave all food and drink outside the courtroom.
• Make sure you enter and leave the courtroom quietly, so as not to disturb others. Silence is required of people when they are in a courtroom unless the judge asks them to approach and be heard.
Some courts may require parents to submit a proposed judgment in advance of the hearing. Please check with the court clerk. Failure to do so may result in delay or dismissal of your case. You can hire a lawyer for the specific task of drafting the judgment.
What happens during my hearing?
• The judge or commissioner will call your case for the hearing. Make sure you stand when the judge/commissioner enters and when you are talking to the judge/commissioner.
• Address the judge or commissioner as "Your Honor." Do not interrupt the judge/commissioner while he or she is talking. When responding to a judge/commissioner do so in a respectful manner.
• When your case is called for hearing, respond that you are present and come forward to the front of the courtroom. The judge or commissioner will make some remarks before your hearing begins. Listen to the judge and ask for any clarification if you do not understand anything. An official court reporter will be taking down the testimony or the hearing will be tape recorded. Make sure you speak loud enough to be heard.
The petitioner will be heard first. At this time you and your witnesses will be heard by the court to tell your side of the case. Be prepared to make a brief summary of the case to help the judge understand what you are seeking from this trial.
Before the witnesses testify they will be given an oath by the judge. The first question you should ask is the witness's name and address. This will help lay down a framework for further questions. After this you can ask questions that will bring out the information pertaining to your case. When you question witnesses (other than yourself), ask questions, do not make statements. It is the witness giving testimony, so it needs to be their answer. The respondent may object to evidence which you offer. You may respond to their objection. The judge or commissioner will decide if the objection is valid. Wait for the judge’s decision before you proceed.
The respondent is heard second. The petitioner may object to evidence offered by the respondent. During the course of the hearing the judge may ask questions at any time. Listen attentively to the question and then answer. After the respondent’s presentation, the Petitioner may present rebuttal (to mitigate testimony the other party presented) evidence. You have the right to cross examine the other side's witnesses. Make sure you have questions written down when you go up to cross examine. Show respect for all witnesses, even though they may be testifying against you.
When will the judge decide my case?
After the evidence, the judge or commissioner will make a decision, which may be announced at the time of the hearing. Sometimes the judge or commissioner will take additional time to consider the evidence and the law before deciding a case. Once the judge or commissioner decides your case, the judge or commissioner will issue a written judgment.
You may be required to prepare the judgment form for the judge’s signature. It is your responsibility to review the judgment, make sure it is written correctly and that it includes everything at issue. You usually are required to allow the other parties to review the judgment before it is signed by the judge.
The case concludes when the judgment is signed by the judge.
What do I have to do after the judge signs the judgment?
First, you must do all the things that the judge ordered you to do in the judgment. That means you may have to request an assignment of wages for payment of child support, obtain health insurance for the child, or pay money. You also may need to provide copies of your judgment to others.
Failing to do what the judge ordered may result in additional court proceedings for enforcement of the judgment or for contempt of court.
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