Custody Modifications
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THE "WHERE"
In order for a Pennsylvania court to modify an existing child custody order, it must have jurisdiction. The requirements for jurisdiction vary depending on whether or the initial custody order was entered by a Pennsylvania court, or a court of some other state.
Where the child and both parents all reside in Pennsylvania, the jurisdictional issue is pretty simple. Pennsylvania will be able to make an initial child custody determination, which, as you will learn below, generally allows a court in this state to modify that order later on. If Pennsylvania had jurisdiction to enter the initial custody order (and did so), Pennsylvania will have what is called "exclusive, continuing jurisdiction" over any modification of that order. This means that unless Pennsylvania loses jurisdiction, it is the only state that may modify the original order. So, for example, a Pennsylvania court issues an initial custody order. Mom and Kid have lived, and continue to live in Pennsylvania, but Dad moves to New Jersey. Dad cannot ask a New Jersey court to modify the Pennsylvania order, but rather, he would have to drive all the way back to Pennsylvania and ask for a modification there.
On the other hand, if a state other than Pennsylvania entered the initial custody order, it may be difficult to establish that a Pennsylvania court has jurisdiction to modify the out-of-state order, as that other state may still retain continuing, exclusive, jurisdiction over the matter. In Pennsylvania, a court will not modify another state's custody order unless: (1) Pennsylvania had jurisdiction to make an initial custody determination based on the criteria discussed above regarding the initial custody determination, and (2) the state that entered the initial child custody determined that it no longer has exclusive, continuing jurisdiction or a Pennsylvania court would be more convenient; or if neither the child, nor the child's parents (or any person acting as a parent) personally reside in the state which entered the initial order. Things can get really messy if multiple states have jurisdiction at the same time, because each state could enter their own orders, which could potentially conflict with one another. For this reason, only one state is allowed to have jurisdiction at a time.
THE "WHY"
If Pennsylvania courts have jurisdiction to modify an order for child custody, it will only do so if it serves the best interests of that child. For example, a court will not alter the child's routine and inhibit continuity for nefarious reasons, such as one party being jealous of how much time the other party was awarded. On the other hand, if serious allegations are made, the custody order in place may not serve the child's best interests and thus, the court may modify it.
During these proceedings, if the conduct of one party was "obdurate, vexatious, repetitive or in bad faith," the court may award reasonable interim or final attorney's fees to the other party.
Child Support Modifications
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Many things could result in the need to increase or decrease child support payments. Under Pennsylvania law, a support obligation may be adjusted if there has been a "material and substantial change in circumstances." For example, the existence of additional income or assets, changes in custody, changes in employment (e.g., being promoted or demoted), or changes to the guideline.
Many people try to reduce their support obligation when they have experienced a change in employment. However, in Pennsylvania, if you voluntarily take a lower paying job, quit, change occupations or employment status to pursue an education, or are fired for cause, a court won't reduce your obligation. On the other hand, a court will make appropriate adjustments for substantial, continuing, and involuntary decreases in income (e.g., if you get sick, or if you are laid-off, terminated, or your job was eliminated due to something that was beyond your control).
Another thing to note is that federal and state law require the guideline to be updated every four years, which could change your support obligation. This constitutes a material and substantial change for which you can petition for a modification. However, you must actually petition for the modification, your order will not update automatically when the guideline is updated.
Finally, it is not uncommon for parties to go on and have more children with other partners. If someone who already pays child support has another child, it may become difficult to support the new child while keeping up with a support obligation to the other family. In Pennsylvania, if your total basic child support obligation is 50% or less of your monthly net income, a court will not deviate from the guideline. However, if it exceeds 50%, the court may consider a proportional reduction. The guideline seeks to treat each child equitably, so neither family will be prioritized at the expense of the other. Courts will also consider other income in the family (e.g., a step-parent's income) as a factor when deciding whether to allow a deviation from the guideline amount.
Both parties are obligated to inform the Domestic Relations Section, as well as all other parties, within 7 days of any material change relevant to child support. In order to request a modification, either party may go to the Domestic Relations Section and complete a Petition for Modification. The Domestic Relations Section will then schedule a conference to consider the request. If the court finds there has been a material and substantial change in circumstances, the child support obligation may be increased or decreased based upon the guideline and the current custody arrangement.
For more information on this topic or any topic in divorce, custody, mediation, child support, collaborative law, PFA matters, alimony, or other family law matters, contact Notaro Epstein Family Law Group, P.C. at (412) 281-1988 for a free phone consultation with an attorney. You can also schedule online by clicking here.
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