Motions to Modify

After a child custody or support order becomes final — whether through settlement agreement or after a court decision — either party may still have an opportunity to challenge certain decisions made by the court, or change certain rights and obligations set out in the final judgment

Appeals

Either or both parties can appeal a trial court judge’s decision to a higher (“appellate” or “appeals”) court, but it is unusual for an appeals court to overturn a judge’s decision in a family law case unless it is an issue of law.

The main form of argument on appeal is the written appellate “brief,” filed by counsel for each party. A brief is a document containing a legal argument, supported with reference to applicable case law and statutes. With this brief, the party that was given an unfavorable ruling in the trial court will argue that the trial court judge incorrectly applied the law in making a decision. The opposing party will argue that the trial court’s decision was correct. The lawyers for the parties submit their briefs to the appellate court and may be granted oral argument.

Appeals court decisions usually turn on the “record,” a written version of what happened in the trial court. The success of an appeal therefore usually depends on what occurred at trial; new evidence may not ordinarily be introduced on appeal. Once an appeals court has made its decision, the opportunity for further appeals is limited.

Also, remember that settlement agreements usually cannot be appealed if both parties agreed to the terms of the settlement. So, if you and your former significant other reach a settlement agreement on issues such as a parenting plan or appropriate child support payments, and that settlement agreement is approved and finalized by the judge, you are most likely stuck with the terms of that agreement. However, you may be able to ask the court to modify any judgment arising from the settlement agreement as to custody, parenting plan, child support and/or spousal support also known as maintenance.

Motions to Modify A Prior Judgment

While appealing a prior judgment involves challenging the trial court’s decision in front of a higher court, you can also ask the trial court itself to change certain aspects of the prior judgment after it has been entered — including child custody arrangements, visitation schedules, child support, and maintenance.

In the family law setting, such a request is usually made by filing a “motion to modify” the prior judgment. This motion is usually filed with the same court where the original or underlying case was originally filed.

For example, if the divorce decree awarded joint legal custody of your children to you and your former spouse, and you later learn that he or she has been arrested for DWI with the children in the car, you may be able to ask the court to modify custody based on these new facts. Similarly, if the original divorce judgment required you to pay $2000 in child and maintenance, but you recently got laid off from your job, you can file a motion to modify child support and maintenance.



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