Can a court order for maintenance or custody be modified?
When the Court grants an order in family proceedings for separation, divorce or custody the financial, housing and visits will be considered at the time the order is made. As the children get older some of the circumstances may have changed and those originally agreed by the parties, or decided upon by the Judge, become less appropriate for the parents and children.
In these cases it is possible to ask the Court to modify the decision. Spanish Courts have established the following prerequisites in order to modify any of the measures:
- That a significant change of circumstances has come about since the time that the original measures were adopted.
- That such a change is lasting and is expected to be permanent.
- That the change was not caused singularly by the party applying for the measures to be modified.
- That the circumstances were unforeseeable at the time that the measures were adopted.
In short, what the Courts are require is that a major change has come about in one or both of the parties’ circumstances affecting the compliance with the Court decision. One significant change can be in the income of one of the parties. To modify existing maintenance payments it is necessary to show that there has been a considerable change such as loss of employment, sale of a business or getting a new and better paid job.
Where one of the parents has a child from a new relationship it does imply additional costs for the parent. However, the Courts have been very adamant in stating that the birth of one or more children from a new relationship is not in itself a reason for agreeing to change the level of payment. Factual evidence of income must be provided to show why the payments should be changed to provide for a new family as the court will normally want existing payments to be maintained.
Another matter of controversy that is frequently brought to Court regards the change of residence of the minors where one of the parents disagrees. In such cases, the Courts must weigh up the differing interests and ensure they safeguard the children’s relationship with both parents. The Court will require proof of the reasons why a change of residence would be of benefit to the child. There are a number of court reports on these cases but each situation must be considered on its merits as each family will differ in its needs and child arrangements.
Our specialist Family lawyers and Abogados can advise you. Please contact Sandra Wrightson and Reyes Gomez on [email protected] or call 952 527014 for a confidential appointment.