After a divorce has been finalized and a custody plan is in place, things often can and do change in the parents' and child's lives. If the original custody order is no longer working, either parent or other custodial adult can work with a lawyer to petition the courts for a modification to the plan.
Modifications are not automatic though; just because one parent asks the court to change the court ordered plan does not mean the court will automatically do so. The burden of proof is on the person requesting the modification to show both that (1) a substantial change has occurred in the circumstances of the child or the nonmoving party, (2) the proposed changes are in the best interest of the child, and (3) the changes are necessary to serve the child's best interests. A substantial change in your own circumstances is normally deemed to be irrelevant for modification of the parenting plan.
The statutes and cases on modifications are complicated, and it is important to have an experienced family law attorney represent you. Most importantly, you must have your evidence well organized from the very start, since the Court will normally schedule an "Adequate Cause Hearing" within thirty days after the modification petition is filed and served. At that hearing, the Court carefully analyses the facts alleged by the Petitioner and the Respondent. No testimony is allowed; the hearing is conducted with sworn declarations, exhibits, and the argument of the attorneys. If the Court feels that the your case does not have "adequate cause" to proceed, your entire case will be dismissed, and you and your witnesses will never get to testify.
Many factors are considered when Washington courts review requests to substantially modify parenting plans. The court will attempt to address the following questions:
- Has there been a substantial change in circumstances for the parents that would warrant a change to the custodial agreement?
- Do both parents agree to the proposed changes?
- Has the child been living with the parent proposing the changes already, with the other parent's consent, in spite of a parenting plan that provides for different arrangements?
- Is the current environment detrimental to the child, either physically, mentally or emotionally?
- Would a change in the environment cause the child physical, mental or emotional harm?
- Has the other parent failed to comply with the terms of the existing parenting plan and, if so, has he or she been found in contempt of court or convicted of custodial interference?
When a request to modify an existing agreement is relatively minor, such as a change to the parents' work schedules, the order may be approved upon a showing that the change of circumstances necessitates modifying the parenting plan, and that the changes are in the child's best interests.
At the end of the day, it comes down to what is best for the child. To learn more about modifying existing child custody orders, contact an experienced family law attorney to discuss the circumstances and determine the best way to proceed.