What is a parenting plan modification?
Washington law allows parents, legal guardians or legal custodians to change the custody of the children, or modify a party’s visitation with the children, set under a prior dissolution, nonparental custody decree or paternity decree. The general rule is that an order of child custody or terms of the Parenting Plan or Residential Schedule can be modified only if a substantial change of circumstances has occurred. The law recognizes three types of modifications: modification, adjustment to residential provisions and adjustment to nonresidential provisions. The same legal standard applies to modify a Custody Decree, Parenting Plan or Residential Schedule in dissolution, nonparental custody and paternity cases.
Washington State law also allows parents to modify residential provisions without a showing of substantial change of circumstances if the parent with whom the child resides a majority of the time seeks to relocate the child.
A. Change in custody of the minor child
In applying the “substantial change of circumstances” standard, the court shall retain the residential schedule established by the Decree, Parenting Plan, or Residential Schedule 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 environment under the Custody Decree/Parenting Plan/Residential Schedule 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 under RCW 9A.40.060 or 9A.40.070.
B. Adjustments to residential provisions pursuant in the Parenting Plan
The court may order adjustments to the residential aspects of a Custody Decree/Parenting Plan/Residential Schedule upon a showing of a lower standard of what constitutes a “substantial change of circumstances” if the proposed modification is only a minor modification in the Residential Schedule that does not change the residence the child is scheduled to reside in the majority of the time and:
(1) is not more than 24 full days in a calendar year; or
(2) is based on a change of residence or an involuntary change in work schedule by a parent which makes the Residential Schedule in the Parenting Plan impractical to follow; or
(3) the increase is more than 24 full days but less than 90 overnights per year total, and the Decree, Parenting Plan or Residential Schedule does not provide reasonable time with the non-primary residential parent.
The court may also adjust the Residential Schedule in keeping with the best interests of the child if the non-primary residential parent voluntarily fails to exercise residential time for an extended period, that is, one year or longer.
C. Adjustments to nonresidential provisions
The court may order adjustments to the nonresidential provisions of a Custody Decree/Parenting Plan/Residential Schedule upon a showing of a lower standard of what constitutes a “substantial change of circumstances and the adjustment is in the best interest of the child.
Either parent can begin an action to modify child custody, visitation or other term of the Parenting Plan or Residential Schedule by filing a Petition and supporting affidavits with the clerk of the superior court. The documents must also be properly served on the other parent. The supporting affidavits, also called declarations, must set forth facts supporting the requested modification.
D. Hearing to Show Adequate Cause for Modification
The parent responding to the Petition has a limited time in which to file a response with the clerk of the superior court. The Response must be filed within 20 days after being served the Summons and Petition (or 60 days if the responding parent is served out of state; or 60 days if the responding parent is served by publication pursuant to an order allowing service by publication; or 90 days if the responding parent is served by mail pursuant to an order allowing service by mail). The petitioner or petitioners attorney must also be served a copy of the Response within the same time period. Declarations in response the other parent’s statements should be filed with the Response. Failure to file the answer on time may result in the court entering a default judgment, which gives the petitioner parent everything requested in the Petition.
Once the responding parent has filed and served a Response, either parent may set a hearing date for a preliminary hearing. At the adequate cause hearing, the court decides whether the declarations show sufficient facts to go forward with the modification action. If there is “adequate cause,” or reason enough to go ahead, the court will schedule a hearing to decide whether to change the parent with whom the child resides a majority of the time or modify or adjust the residential provisions or nonresidential provisions of the Custody Decree/Parenting Plan/Residential Schedule. If “adequate cause” is not shown at the first hearing, the court will deny the Petition to modify or adjust the Custody Decree/Parenting Plan/Residential Schedule without any further hearings.
E. A note about the Parenting Seminar.
If the petition requests a major modification of the custody decree/parenting plan/residential schedule, the county in which you file your petition may require you and the other parties to attend a parenting seminar about the impact of the court action on the children and how you can take care of the childrens emotional needs during the legal proceeding. The mandatory seminar must be completed within a specific time period. To find out about your countys parenting seminar requirements, check your countys local court rules at the county law library or on the Internet at: www.courts.wa.gov. You may also ask the county clerk about the parenting seminar when you file your petition or response.
Should You Hire a Lawyer?
You are not required to have a lawyer to modify child custody or a Parenting Plan. The decision is up to you. In making this decision you should be aware many people find that the paperwork required is complex. You should also be aware that if you decide not to use a lawyer, the other party may still use a lawyer and that you may be at a disadvantage if you proceed without a lawyer. If you do not have a lawyer you will be expected to know all the laws and court rules which apply to your case as if you were a lawyer.
The process can at times be daunting. There are many procedural aspects in modifying a parenting plan that are not commonly known by the public at large. If parties cannot come to an agreement, the parenting plan petition will be presented to the court for a full trial. In that trial, the Judge will decide what is in the best interests of the child based solely on the information the attorneys provide. If the trial judge does not have the correct information, he/she will not do the work for those parties who are not represented by attorneys.
If you feel that you need to modify your parenting plan, I will be happy to speak to you about your case. I have 15 years of experience dealing with trial courts in a number of counties and I will do my best to insure that your case is presented to the court in a full and complete manner.
WHAT ABOUT MOVING AWAY WITH MY CHILD?
Washington State has recently changed the legal requirements for primary residential parents (the parent with whom a child resides the majority of the time, sometimes called “custodial” parent) who wish to move and take their children with them. These requirements became effective on June 8, 2000, but may apply to orders entered before that date, so it is important to CONSULT WITH AN ATTORNEY if you are thinking about relocating with your child.
If you are planning to relocate with your child, and there is an existing court order that allows the other parent or a third party (like a grandparent) residential time or visitation with the child, you must give that person advance notice of your plan to move. If there is no existing court order, or the court order does not give anyone else the right to visit with the child, then the relocation statute does not apply to you. Once notice is given, if the non-residential (noncustodial) parent objects to the relocation of the child, s/he must file an objection within 30 days.
Does the relocation statute apply to me?
If you have an existing custody order (i.e. parenting plan, temporary parenting plan or other court order) regarding residential time or visitation with your child, then the statute most likely applies to you in whole or in part.
If your parenting plan or court order was entered after June 8, 2000, the statute fully applies.
If your parenting plan or court order was entered before June 8, 2000, and relocation is specifically addressed in that order, then the statute may apply only partially. If any part of your current court order issued before June 8, 2000 directly conflicts with the statute, then the statute will not be applied to the issues covered by the order, and you should follow what is written in your court order. If you are not sure whether the relocation statute applies, you should consult with an attorney.
If you do not have an existing order regarding residential time or visitation with your child, then the statute does not apply. You are free to move, but you should be mindful of custodial interference laws and UCCJA (jurisdiction) laws.
Custodial interference laws make it a crime to take or hide a child from the other parent with the intent to deny that parent access to the child, even if there are no court orders in place. It is a more serious crime if the child is moved from his or her usual state of residence. As long as you let the other parent know where you are going and how to reach you to arrange contact with the child, then you should not be at risk of being charged with criminal custodial interference. If, for safety reasons, you feel that you cannot tell the other parent where you are going, you should consult with an attorney before taking action.
The UCCJA is a law that controls which court has jurisdiction to make custody and visitation decisions about your child. It says that, in most cases, if a child is moved out of state, the old state continues to be the childs “home state” for six months after the move as long as one parent remains in the old state. Any court action within the first six months after relocation will probably need to take place in the previous state. So, if you dont have a custody or visitation order in place, and the other parent stays in Washington and files a court case, you will need to respond and be prepared to return to Washington
Contact Dave Hawkins today for a consultation.