Modification of Child Custody

Like child support and alimony, custody orders may be modified under certain circumstances. The test to determine whether a custody modification is proper is a three part test:

1. Has there been a material change in circumstances;
2. If so, has the child been adversely affected by the change; and
3. If so, would a modification of custody be in the child's best interests.

If a material adverse change has occurred, the court will engage in a re-weighing of the Albright factors to determine what arrangement would better serve the child's best interests.

Material Change

Whether a material change has occurred depends on the totality of the circumstances. Changes that would not by themselves constitute a  material change might, in combination, be a basis for modifying custody. For example, if a custodial parent gambled, drank, or struggled to hold down a job - any one of those by themselves would likely not be enough to support a custody change (depending on the severity of the problem). However, if a custodial parent struggled with gambling, drank frequently, and was usually unemployed, the totality of the circumstances might be a material change that would warrant a custody modification.

Adverse Effect

Even if a material change has been shown to have occurred, custody should not, generally, be modified unless the change adversely affects the child. However, if circumstances in the home of the custodial parent create a strong likelihood that a child will be hurt, custody may be modified even absent an ability to show that adverse effects have already occurred. For example, if a stepfather's verbal abuse has been escalating a modification of custody may be appropriate - even before the abuse actually turns physical.

Child's Best Interests

The best interests of the child is always the "polestar consideration" of the court in all matters related to children. The child's best interests are weighed considering the totality of the circumstances. Therefore, it is potentially possible to have an adverse material change that would not result in a change of custody - if a modification would not be in the child's best interests (circumstances of the non-custodial parent are worse, etc.).

Modification of child custody is determined on a case-by-case basis. The facts and circumstances of each individual matter are what ultimately determines the outcome. If there has been a change in circumstances at the custodial parents' home, you should contact a divorce and family law attorney to evaluate whether or not the change may warrant a custody modification.

Modification of Alimony

As discussed in our general discussion on alimony, there are four distinct types of alimony in Mississippi. The type of alimony that was awarded or agreed to dictates whether or not a party may be able to modify alimony payment obligations down the line. Generally, permanent and rehabilitative alimony may be modified if there has been a "material change in circumstances" that affects either a payor's ability to pay alimony, or a recipient's need. However, lump sum alimony and reimbursement alimony (typically awarded as a lump sum) 'vest' when the award is made and may not be altered because of a change in circumstances.

The test for modification of alimony is virtually the same as the test for modification of child support - there must be a material change in circumstances that was not foreseeable at the time of the decree. The change in circumstances must be clear and substantial, but not every material change warrants a modification.

Just like most aspects of a divorce, modification will be determined by courts on a case-by-case basis, taking into account the specific facts and circumstances of each individual matter. Some general considerations to keep in mind:

• Alimony can not be awarded in a modification proceeding if the original decree did not provide for alimony
• Alimony may not be modified by an out-of-court agreement
• Only payments not yet due may be modified. Missed payments can not be modified or forgiven.
• Lifestyle choices are usually not reason for modification - new debt, and the births of later children generally do not constitute material changes

These are but a few of the things one must consider when evaluating whether or not a modification of alimony obligations may be warranted. If the financial situation of you or your former spouse has recently changed - whether from a promotion, a lost job, or any other significant change in income - you should speak with a divorce and family law attorney to see whether an alimony modification may be possible. Modification may be used to increase or decrease the support obligation depending on the change in circumstances.

Modification of Child Support

In Mississippi, the child support agreement may be modified if there has been a material change in circumstances of the child or parents, unforeseeable at the time of the award,  since the decree. The factors that the court will consider in determining whether a material change has occurred are:

• The increased needs of older children
• An increase in expenses
• Inflation
• A child's health and special medical or psychological needs
• The parties' relative financial condition and earning capacity
• The health and special needs of the parents
• The payor's necessary living expenses
• Each party's tax liability
• One party's free use of the residence, furnishings, or automobile
• Any other relevant facts and circumstances

If a court, after weighing the facts, determines that a material change in circumstances exists it will apply the statutory guidelines to determine the appropriate amount of support.

A payor's increased income by itself does not necessarily constitute a material change in circumstances - nor does the mere fact that children are older. Also, changes in income or expenses of a payor resulting from lifestyle choices are not reason to modify: a payor may not be allowed to reduce support based on newly acquired personal debt or costs of additional children in later families.

It is important to know that child support may generally not be modified via an out-of-court agreement between the parties. Although more recent decisions seem to confuse the matter, it is best to modify your agreement through the court - as the court is under no obligation to enforce an out-of-court-agreement between the parties and the payor may still be on the hook for arrearages.

Only payments not yet due may be modified. Vested alimony or support payments cannot be modified or forgiven by the court or the parties. Additionaly, a payor in arrears (behind on his/her support or alimony payments) may be denied modification - even if there has been a material change in circumstances.

Modification of your support obligations is a complicated process. If you are having difficulty making your support payments, or have recently had a significant change in income or circumstances it is in your best interest to contact a family lawyer.