The Court of Appeals in Wilson v. Craig, highlighted that child custody and support can be modifying after the final decree of divorce and execution of a separation agreement essentially nullifying the agreement.
Parties had reached a comprehensive separation agreement, which was incorporated by reference but not merged into the final divorce decree addressing property distribution, child custody, and child support. The child custody provision of the agreement called for joint legal and physical custody of the children.
Ms. Craig subsequently filed for modification of child custody agreement requesting sole physical and legal custody of the children. The trial court after an evidentiary hearing agreed, and awarded sole custody to the mother.
Mr. Wilson appealed arguing the trial court had erred:
- In modifying the settlement agreement (“Agreement”) by awarding sole legal and physical child custody to Ms. Craig;
- By modifying, sua sponte, his child support obligation and overstating his ability to pay the increased obligation;
- By awarding retroactive child support without a petition by Ms. Craig seeking a change in the child support amount; and
- In holding Mr. Wilson in contempt of court for failing to timely pay retroactive child support.
The Court of Appeals held in short that Craig had shown by clear, and convincing evidence substantial, and material change of circumstances warranting change of custody order.
The trial court had ordered a forensic psychological report of the children, and the report had revealed:
- Continuing the joint custody agreement was not workable due to high level of discord among parents,
- Children had developed discernible, definable, and diagnosable conditions caused by added number of changes, transitions, and stresses inherent in living in two separate households.
- Forcing a shared physical custody under these conditions was tantamount to increased psychological imbalance and risk and ultimately poor childhood outcome.
Thus, the best interests of the children legal criteria dictated modification of the custody to sole legal and physical custody.
Moreover, the modification of the custody necessitated modification of the child support. Generally retroactive modification of child support is only permitted with proper petition and notice, however, the Court deemed that the father had sufficient notice through the proceedings and thus award of the retroactive support was warranted.
This case highlights that the trial court retains firmly jurisdiction and might to alter child custody/support when needed and regardless of the terms reached via divorce settlement agreement when the best interests of the children criteria requires such modification.
Refer to our Washington DC Divorce and Child Custody lawyer pages for more details on these subjects.