WHEN CAN A PERSON MODIFY CHILD SUPPORT AND VISITATION?


Two of the biggest issues to be decided in a divorce case is child support and custody agreements. Although the trial court may make an original determination as to these matters, a parent can always file a motion to modify the order if circumstances have changed. The case of Bosarge v. Bosarge is an illustration of this concept.

The parents were divorced in 2015. In 2016, the father filed a motion to change the divorce judgment. In response, the mother filed a motion to hold the father in contempt for not paying child support. At the end of the trial, the court awarded the father supervised visitation with the possibility of standardized visitation after four months if the supervised visits went well. The court also lowered the father’s monthly child support payment and ordered him to pay the mother $5,502 for past due child support.

The mother appealed based on two arguments. First, she argued that the trial court was not allowed to apply the child support modification retroactively. Applying the support modification retroactively means that the court lowered the past due payments as well as the future payments. Because previous decisions by the court of appeals had ruled that the trial court could apply decisions retroactively at its discretion, the court of appeals upheld the trial court’s decision.

The mother next argued that the trial court should not have changed the father’s visitation schedule. The father did not show a material change in circumstances, which is the standard a person must meet in order to have their visitation modified, so the court in this case made an error. However, the father was not present when the visitation was originally decided because he was not aware of the trial date. The mother also argued that supervised visitation was needed because of the father’s use of prescription pain medication and past verbal abuse. In response, the father testified that he could not afford the fees for supervised visitation.

He was on social security because of a past work injury. He also testified that he had reduced the amount of pain medication he had been taking, so the medicine should not affect his ability to care for the child. As to the verbal abuse, none of the evidence showed that it continued after the divorce was finalized. The court reasoned that although this may show that the parents do not get along, it does not show that it would be against the child’s best interest to visit with the father. For those reasons, the court of appeals decided there was enough evidence for the trial court to change the visitation schedule.

If the father had an attorney at the time of the divorce hearing, it is likely that this case would have never occurred. Luckily, he was able to file a motion and get the support obligation and visitation schedule modified. If you have children and are going through a divorce, you need an experienced attorney so that mistakes like this do not happen. Contact Joseph A. Ingram of INGRAM LAW LLC today at 205-236-3997.

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