Reality trumps orders see an attorney. If he is not exercising his time, the order and child support should be changed.
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I agree with Attorney Brennan. Your parenting time order should reflect the parenting time he is actually exercising. The problem you may run into is that your ex-husband will "suddenly" become interested in taking his parenting time once you file a motion to modify. Usually, non-custodial parents will do this to lessen their child support obligation.
The fact that he has failed to exercise his parenting time may not be a sufficient basis, in and of itself, to persuade a court to change the custody arrangement. The court must first determine if there has been a sufficient change in circumstances relating to 1 or more of the child custody factors since entry of the last order/Judgment concerning custody. If the change is deemed insufficient, then the court should not, and probably would not, allow the request to go any further.
Often times a certain parent will seek a lot of overnights with the children, since the number of overnights is directly related to the support obligation. Once in place, the parenting time is not exercised as expected, requested, or written. It's just a way to reduce support.
Consult an experienced family law attorney to discuss the likelihood of success should if you are contemplating a change in the custody arrangement. That attorney would obtain more facts relating to your case and current situation, and he/she will then be able to better assess your success. Remember though, it is a greater burden to change custody post judgment. You must be able to show by clear and convincing evidence that the children's best interests would be served by changing the custody provisions.
Neil M. Colman
Mr. Colman is licensed to practice law in Michigan. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Colman strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.
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