Failure To Seek Custody Modification Prevented Complete Termination of Child Support

The children shortly after the divorce agreement and final judgment began to spend more time at their father's home than at their mother's home. The father was paying substantial child support to the mother. The existing agreement provided for joint custody with primary residential with the mother and therefore the father paid child support.

The father made an application to terminate his child support and sought child support from the mother. The divorce court granted the father's application with only a partial reduction even though after a hearing it was determined that the father met his burden of showing that the children were now primarily living with him. The court reduced his obligation to the basic child support amount and did not require the mother to pay child support to the father.

The court found that the father never filed a petition for a modification of custody where he would be the primary custodial parent and there was no proof that the mother agreed with the children's change of residence even though they were actually living primarily in their father's home.

The court did reduce his child support to the "basic" level due to the additional expenses that the father incurs for the children that were unanticipated when the original amount of child support was determined. However, the father was still stuck paying over $5,500 per month.

On appeal the decision was maintained (affirmed). The lesson to be learned is that there must be an application to change residential custody if you want child support terminated by the new primary residential custodial parent. The courts do not like "self-help" and they want the parties to either sign a new agreement regarding custody and child support or file an application with the court.