Full question:
Please ensure you reference the laws of NJ so that my question may be answered accurately. I have a certified court order (divorce court) from the state of Illinois that grants me sole custody of my daughter. Her Father moved to New Jersey in 2005, and in 2008 we created an agreement that stated she would live with him until she was eighteen. He signed and notarized his copy in NJ, I signed and notarized my copy in IL. My daughter now wants to move home and because of this my Ex-Husband has canceled flight plans for her and eliminated my ability, right, and authority to communicate with her. Can I fly to NJ with my court order and retrieve my daughter? Shouldn't a certified court order supersede a notarized agreement signed in two different states?
- Category: Divorce
- Subcategory: Child Custody
- Date:
- State: Illinois
Answer:
The general rule is that parties may not modify a court order by private agreement and the court must issue a modification of the order to be legally enforceable. A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification. It is possible to modify a support order so that support isn't owed by the obligor for periods during which the obligor has custody.
A modification generally affects future support payments. Typically, the current default of one party will be taken into consideration in making the modification by stating how any delinquent payments owed will be treated. The modification is usually made to apply to future payments only and is not retroactive, so that arrearages are still owed. Collection of arrearages may occur separately from the modification. Failure to provide for past due support in a modification will not necessarily void the modification, but may require a clarification by the court.
Certain aspects of the decree are modifiable, while others are not. The property division is not modifiable by the court. It is final. Child support may be modified if there is a significant change of circumstances. A significant change of circumstances may include, among others, a change of custody, substantial increase or decrease in income, emancipation of a child, or contribution to expenses by another due to cohabitation or remarriage. The court's decision to grant a modification is based on the best interests of the child. If granted, the court will issue an order. When the order is made, the requests in the motion/petition become enforceable.
When a court order isn't followed, a petition for contempt may be filed in the court that issued the order. A request may also be made to have the court to order the noncomplying party to pay for the losses caused by the failure to comply, such as lost plane fare. The court retains continuing jurisdiction to enforce its orders by holding the noncomplying party in contempt of court.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
