There is a test that has to be applied to any Motion To Change, that if it's not satisfied will stop a Motion To Change in its tracks at trial. This is why it's called a "threshold" test. If you can't pass this test, nothing else matters in your materials. There are circumstances where this material change test doesn't have to be done, we'll talk about that at the end.
People mistake the law/statues as giving you the answers to legal questions. They don't. What the statutes do is give judges (and the litigants) the tests and criteria that they then use to see how it applies to the case. Case Law (prior decisions) give examples of how Judges applied those tests to various cases. Find a case where the facts are the same(ish) as your case, and you can see how those statutes most likely will be applied to your case.
Now to be clear, you will still, at the time of the trial, be heard even if you don't pass this test. It's not like the judge will stop you in your tracks, but the decision that comes afterwards will address if you passed it or not. If you didn't, then all that work will be done for nothing and you could look forward to a costs award levied against you.
Who has to take "the test"?
The person who is seeking to make the change, must satisfy the test. The person who is responding to, doesn't; but their first goal is to prove that there has been no material test. If the responding party proves there's been no material change, then they win straight out of the gate.
The Meaning is in the Words
Material means it has to be significant change in the circumstances. This is a big one. Small changes don't cut it. It has to be "big". Big enough that if the new circumstance was "a thing" at the time of the final order, you could say no reasonable judge would have made that order (or the parties would not have made the agreement that they did).
Change has a double meaning. One was touched on above, something must have changed from the time of the original order (and that change was significant). The second part catches people up a fair amount, this change must be something that was not contemplated by the parties (or the Judge) at the time of there order/agreement.
This means that something like the fact that the child has gotten older would not satisfy this test, simply because everyone expects the child to age. If something was brought up at trial, or known at trial, like drinking habits of one of the parties, then you can't rely on that for this test because it was already known. Now an escalation, like DUI convictions with the child in the car since that final order could satisfy this test.
The Criteria
Each one of these points must be considered when evaluating the Material Change Tests:
You can not be the Architect Of the Change
This trips people up all the time. You can't be the source of the change if you are the one going for the Motion To Change. For example, you decide to move closer to the kids. That's great! Do that. But that's an action of yours and it will fail.
Now, you moving closer may not pass the test here. BUT... it could lead to a significant change the views and preferences of the kids with respect to access which THEN could be considered a change.
You quitting your job, that is something you did and would not work. You getting fired because you were caught stealing also wouldn't work. But, if you were laid off due to an industry downturn, or the company you worked for simply went belly up, then this would be a change that could be considered.
If you got remarried and there are now half (or step) siblings that you want your child from your first marriage to be more involved with, or you just have a better domestic situation. Again it could not only fail for you, but it could give rise to the other side saying your new marriage gives them the grounds to pass the test if you or your new spouse attempts to "replace" the other biological parent.
Not Contemplated Before By Either Party, or the Court
This was touched on above but it applies here too. If the thing you're relying on was either known or should have been known then you can't rely on it. Even if your ex remarries, that in itself can't be relied on because we can reasonably expect that our exes might remarry. If they remarry and there are big problems as a result of that, then that could be used however.
Significant or "Material"
This too was touched on but we will again here. A partner remarrying won't satisfy this test. The usual problems that may come along with a new blended family wouldn't satisfy the test. BIG problems though could.
A child's relationship with the other parent may go through ups and downs. Good months and bad months. That's normal. Every parent is going to hear from their teenager at some point "I hate you!". Its normal. Your failure to help mitigate these issues and failure to continue to support the relationship between the child and the other parent could give rise to them having an argument for a material change test though. It has to be BAD.
One thing to note, when a child hits 16, they can vote with their feet. If they don't want to go - they can't be compelled to. That may happen with a spat and last for a few weeks or a month. But if it's persistent and looks like there's no end in sight - that could satisfy the test. Keep in mind, the journey for a Motion to Change can take many many months, even years. embarking on it too quick only to have the child change their mind a few months in will put you into a very vulnerable legal position. Be careful with this one.
Why Is This Threshold Test So Hard?
Because it has to be to give parties a sense of finality. The Courts want people to move on. They don't want people to be constantly looking over their shoulder waiting for their ex to drag them back into court.
Decisions are meant to be final, not "just until someone wants to change something". But decisions also can be completely rigid. Something significant may force the necessity of a change.
The material change test is there to take all this into account.
When Can You Skip This Test?
An agreement or order can have a review clause built in that would satisfy the test.
For example, if one parent lives out of the country, and the agreement/order says access will be reviewed if the parent moves back, then the material change test is not applied.
Comments