Georgia

Modification of a Court Order in a Family Law Case

Authored By: Atlanta Legal Aid Society Inc LSC Funded

Information

Modification of a Court Order in a Family Law Case

Once a court issues a final order in a family law case, the order is final. To request a change you must file a new case with the court. You should follow the terms of the original order until the court issues a new order. Even if you and the other party agree to a change, the change is not official until the court approves it in a court order.

Some things in a family law case are only changed in very rare circumstances. For example, property and debt division in a divorce generally cannot be changed. Paternity decisions generally are not changed. These kinds of orders can only be "set aside" if circumstances like fraud, duress or improper notice can be shown.

Some issues in family law cases are commonly changed. Child custody, visitation and child support orders are frequently changed by the courts. Still, the court follows certain guidelines to determine whether a requested change is proper.

(1) Child custody: In child custody modifications, courts look for a change in the child's life or a change a parent's life that "materially" affects the welfare of the child. The change can be positive or negative. If the reason for the change is based on a parent's circumstances, you must also prove that the change affects the child, not just the parent. Also, the reason for the change should be something that has occurred since the final order was decided. It is possible to base a change of custody case on something that existed at the time of the original court case. However, you would have to show that the condition has worsened or improved "materially" since the original order was decided.

Under the old Georgia custody law, when a child was fourteen (14) years or older, the child could chose to live with either parent. Unless the parent was be shown to be "unfit", the courts would honor the child's choice. However, this law has been changed and does not apply to custody cases filed after January 2008. Under the new law, the court will consider the child's choice as very important but will decide custody based on what the court thinks is in the best interests of the child. An election by a child 14 or older cannot be considered as a "material change of circumstances" more than once every two years. When a child is eleven (11) years old or older, the child can also tell the court which parent he or she wants to live with. In this case the court will consider the child's choice, but will not necessarily do what the child wants.

(2) Visitation: Visitation can be changed if it is in the best interests of the child. You do not need to prove that there has been a "material" change in the child's life or a parent's life. Once the court grants a modification of visitation, you have to wait two (2) years to ask the court for another change. However, if you can prove that a material change of circumstances is the reason for the change, you don't need to wait the two (2) years.

(3) Child support: Child support orders can be changed based on a change in the income or financial need of either parent. Child support can be changed based on the changing needs of the child. Sometimes if a child support enforcement agency is involved, either parent has the right to have the child support order periodically reviewed without going to court. Sometimes a parent can request a change in child support when there are major changes to the child support laws.

Modification of a court order in family law cases can be a complex process. If possible, you should discuss your case with an attorney or hire an attorney to represent you.

Modification of a court order in family law cases can be a complex process. If possible, you should discuss your case with an attorney or hire an attorney to represent you.