Modification of child support and visitation awards require a material change in circumstances. This can often be a complex issue. Indeed, it does not matter whether the change sought is a minor change or a significant change amending the entirety of the original award for child support and visitation, the standard for such a modification is the same.
As a threshold matter, the test for materiality is whether the change is in the best interest of the child. To reach this point, the court must conclude that an existing provision concerning custody or visitation is no longer in the best interest of the child and that the requested change is in the child’s best interest. If this standard is satisfied, the materiality requirement is satisfied. In other words, the material change in circumstances must relate to the welfare of the child.
The reasoning for this is clearly articulated by the Court. The Court has stated that the desirability of maintaining stability in the life of a child is well recognized and a change in custody may disturb that stability. The second reason is that to prevent a litigious or disappointed parent from relitigate questions of custody endless upon the same facts hoping to find a judge sympathetic to his or claim.
There are numerous examples where this material change of circumstances was found. For example, where a father who has physical custody moved out of state and then moved twice, the Court found a material change in circumstances warranted a change in physical custody since the moving “nullified the presumed advantages of continuity and stability.” Similarly, where a father lived in California when the initial order was entered and then moved back to Maryland, 30 minutes from the child, a material change was found to exist. A material change was found where a parent was diagnosed with bipolar disorder with worsening symptoms. A material change was also found where the parent no longer had use and possession of the martial home at the other parent’s expense. Where proceedings were initiate by a parent as a subterfuge to ostracize the children from a parent the Court found that a material change existed sufficient to warrant primary custody to the parent against whom the action was filed.
There are also examples where a material change in circumstances was not found. For example, in one case, where a mother had been divorced and remarried multiple time and the child was older, the court found there was not a material change especially since “aging is an inexorable progression prevalent in all custodial contests.” In another case, the Court found that a significant reduction of the child support obligation was not, in and of itself, a material change in circumstances. No material change was found where an absentee parent desired to gain more access to the children after a period of time. Likewise, no material change in circumstances was found where a child’s daycare costs were reduced substantially.
The determination of whether a material change in circumstances exists if factually dependent but does contain a legal analysis as well. As such, the complexity of this issue often requires the knowledge of experienced counsel.
As a final note, it is important to note that this requirement only pertains to awards of child support and not settlement agreements addressing child support. The Court does not need to address the “material change of circumstances” requirement when the child support obligation was derived from settlement rather than an award.