Parents who share child custody often try to amend the parenting plan informally. They may make oral agreements, written contracts, or even sworn affidavits. However, none of these informal changes are legally binding and will not hold up in court. Parenting plan modifications need to be done through the court system if parents wish for them to be enforceable. If a modification to the parenting plan is not signed by a judge, it cannot be enforced.
Factors Considered by the Court to Change Custody
The courts have a strong bias toward maintaining the status quo, on the theory that such a major change in a parenting plan is usually harmful to a child's sense of stability and security. Family court judges examine many factors when considering a petition for a change in custody:
o Child custody can sometimes be modified if there has been a substantial change in circumstances since the original parenting plan was implemented. These changes could include a job change, a change in working schedule, or relocation.
o A custodial change in a parenting plan may be granted if it is clearly proven to be in the best interest of the child. This normally reflects a major shift in the lives of the parents, such as chronic drug or alcohol use or criminal behavior. If the child's health, welfare or safety is endangered, a parenting plan modification may be granted.
o A modification may also be in order if one parent is intentionally alienating the affections of child toward the other parent.
Military Issues in Modification of Parenting Plans
When a parent moves away, it can be very disruptive to the visitation rights of the other parent, effectively cutting them off from their child. Washington State recently enacted statute stating that military duty shall not be used as a factor in modifying a parenting plan or reducing visitation. Relocation due to military service can no longer be held against a service member. The statute states: "The effect of a parent's military duties potentially impacting parenting functions shall not, by itself, be a substantial change of circumstances justifying a permanent modification of a prior decree or plan." RCW 26.09.260(1).
Normally, the court cannot modify a prior parenting plan "unless it finds, upon the basis of facts that have arisen since the prior [parenting plan], that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child." RCW 26.09.260(1). The statute and case law make it clear that modifications are not favored by the courts, and that there must be a compelling reason to justify a major modification to an existing plan. Facts considered sufficient for a major change may include drug addiction, alcoholism, mental illness, out of control anger, self-destructive behavior, and criminal activity -- if these facts can be clearly shown to have a detrimental effect on parenting and the child's health, welfare and safety.
Factors Which Usually Justify a Major Modification.
A major modification to a parenting plan is sometimes justified. The statute actually says that the court "shall retain the residential schedule established by the decree or parenting plan" unless certain conditions exist as described below:
o Conviction of custodial interference (RCW 9A.40.060 or 9A.40.070). See RCW 26.09.260(3).
o Willful abandonment for an extended period; physical, sexual or a pattern of emotional abuse; or a history of domestic violence, assault or sexual assault. See RCW 26.09.191(1) and (2).
o Conviction as an adult of a sex offense, or residing with a sex offender. RCW 26.09.260(2)(a).
Other Statutory Factors Which May Justify a Major Modification.
Other specific factors which can justify a modification are listed by the statute:
o The parents agree to the modification;
o The child has been integrated into the family of the petitioner with the consent of the other parent, and in substantial deviation from the current parenting plan;
o 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
o 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.
Minor Modification of a Parenting Plan is Easier.
The court may order "adjustments" to a parenting plan upon a showing of a substantial change in circumstances of either parent or of the child, and without consideration of the factors set forth in RCW 26.09.260(2), if the proposed modification is only a "minor modification" of the parenting plan. A minor modification cannot change custody, and is a change which:
(a) Does not exceed twenty-four full days in a calendar year; or
(b) Is based on a change of residence of the parent with whom the child does not reside the majority of the time or an involuntary change in work schedule by a parent which makes the residential schedule in the parenting plan impractical to follow; or
(c) Does not result in a schedule that exceeds ninety overnights per year in total, if the court finds that parenting plan does not provide reasonable time with the parent with whom the child does not reside a majority of the time, and that it is in the best interests of the child.
Caveat: This Legal Guide is an Overview of a Complicated Issue.
The statutory provisions and court cases are actually much more detailed and complicated than this Legal Guide can discuss in detail. It is always best to seek the advice of an experienced family lawyer before filing a petition for a major or minor modification of a parenting plan.
DISCLAIMER: This AVVO Legal Guide is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Legal Guide is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. (C) Bruce Clement
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