Modifying a Parenting Plan

What is the standard for a court to modify a parenting plan?

A court may modify a parenting plan if it finds a factual basis that a substantial change has occurred in the circumstances of the child or the non-moving party AND that the modification is in the best interests of the child and is necessary to serve the best interests of the child. The basis for the modification must be facts that have arisen since the entry of the prior parenting plan or were unknown to the court at the time of entry of the prior parenting plan.

Is it easy to change the residential provisions of a parenting plan?

No. Courts will keep the existing parenting plan in place unless:

  1. The parents agree to the modification;
  2. The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;
  3. The child’s present environment is detrimental to the child’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child; or
  4. The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree.

A friend told me that she had to appear at a special hearing before she could have a trial on her modification petition. What is this about?

Also known as the threshold hearing, adequate cause is required by statute in parenting plan modification cases. In order to keep children in relatively stable environments, there is a presumption of custodial continuity in modification actions. As a result, before a moving party may obtain a hearing on the merits of modification of their parenting plan, he/she must factually demonstrate that adequate cause exists for hearing the petition. At the adequate cause hearing, both parties have the opportunity to present factual affidavits supporting and opposing the modification. Essentially, the court looks to see if the moving party has factual allegations, which if true, might establish grounds for a change. If adequate cause is found, the court permits a hearing or trial on the merits of the modification itself. If adequate cause is not found, the court will deny the modification of the parenting plan and dismiss the case entirely.

Could the court require me to pay for my ex-spouse’s attorney fees if I fail in achieving the modification?

Possibly. If the court finds that you brought the modification of the parenting plan in bad faith, it will assess attorney fees and court costs of the nonmoving party against you. However, merely failing to demonstrate adequate cause by itself, however, is not bad faith.

My teenage child has told me that he wants to live with me which differs from the current parenting plan. My former spouse will not agree to this change. Can’t a child decide at a certain age who he would like to reside with?

No. The law sets certain requirements for modifying a parenting plan. Unless the parents agree to modify a parenting plan, there must exist “adequate cause” for doing so. A teenager wishing to live with the other parent is not, at this time, considered “adequate cause” for modifying a parenting plan. As a practical matter, it is prudent for parents to listen to their older children and take into account their residential concerns and desires. One option is for the parents to participate in mediation if they cannot agree to a different residential schedule.

What is a minor modification?

Minor modification or adjustment of a parenting plan is a change in the residential schedule that does not change the residence the child is scheduled to reside in the majority of the time, and:

  1. Does not exceed twenty-four full days in a calendar year; or
  2. Is based on a change of residence of the parent with whom the child does not reside the majority of time or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow, or
  3. Does not result in a schedule that exceeds ninety overnights per year in total if the court finds that when the petition for modification is filed the parenting plan does not provide reasonable time with the parent with whom the child does not reside the majority of time and it is in the best interests of the child to increase residential time with the nonresidential parent.

A showing of a substantial change in circumstances of either parent or of the child is required. However, a minor modification is without consideration of the standard factors (agreement of the parties, integration, detrimental environment, or contempt). A party may also request a modification in the dispute resolution process.