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Modification of Custody based on Parental Financial Resources

Nov. 11, 2012

Both parents are required to contribute toward the support of a child. The amount of support is based on the income of the parents, with adjustments for certain other obligations such as day care or extraordinary health expenses. For the most part, courts do not consider modifying custody based solely on a parent’s financial resources, but such resources may be a factor where a change in circumstances can be shown.

Best Interests of a Child

Where a court has determined that there was a change in circumstances affecting a child, the court will consider the best interests of that child in deciding whether to change custody. One factor may be the financial resources of each parent. The fact that one parent has substantially more income than the other is not a critical factor because an order of child support would make the amount expected to be spent on the child available to the child. The fact that a parent has become disabled and can no longer earn at the same level, but is limited to a Social Security disability benefits is not a circumstance that would deprive that parent of custody. A California court stated that the remedy for unequal financial resources is to award child support, not take away custody.

However, if the parent is unable to keep a job and has had numerous jobs over a short period of time, the inconsistency in the life of the child may be the basis for a change of custody. Where the income of the custodial parent, even with child support, results in a home in an area with a problem school, while the other parent lives in a far superior school district or could send the child to a private or parochial school, the court might believe that a change in custody is in the best interests of the child. In a situation where both parents are of limited education and income at the time of a custody dispute, and the noncustodial parent later completes his or her education and gains skills enabling that parent to provide a better standard of living for the child, the court may again look at what is best for the child and would likely change custody.

Often, a child will prefer living with a parent who has substantially more financial resources. If the court was aware of the comparative resources of each parent prior to an award of custody, it will be difficult for a child to show a change of circumstances to warrant a change of custody. If one parent after a divorce begins earning large amounts of money, wins a large lottery, or is the recipient of a large inheritance, the parent may use the funds to attempt to entice the child to want a change in custody. Courts will look at the totality of circumstances before granting the request.