March
15, 2017 – Bains Law Firm
In
Washington, "final" parenting plans are modifiable (as are final
orders of child support). This is unlike
final orders regarding most property awards or debt allocations. The following discusses modification of
parenting plans.
In
order to modify a parenting plan, a parent must file a petition for
modification to initiate the case. Next,
either party can bring the matter on for an adequate cause determination. This is often called the "threshold
requirement" because if a petition fails to establish that adequate cause
exists, the case will be dismissed. In
an adequate cause hearing, the court looks at the facts alleged by the moving
party, which if true, would be sufficient grounds for a modification action to
go forward. If the court finds that the adequate
cause requirement has been satisfied, the case can proceed to further hearing
and/or trial.
Once
adequate cause has been determined, the parties can also move for temporary
orders. (Note: A party may schedule a
motion for temporary orders to be heard at the same time as the adequate cause
hearing). Absent a clear emergency, a
court will not enter temporary orders in a parenting plan modification action
until the threshold, or adequate cause, has been met.
Under
the modification statute, there are a variety of grounds for a parent to modify
a parenting plan, generally grouped into "minor" and
"major" modification actions. Key
portions of the relevant modification statute is below.
Minor Modification
The court may order adjustments to the residential
aspects of a parenting plan upon a showing of a substantial change in
circumstances of either parent or of the child … 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:
(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, at the time the petition for modification is filed, the
decree of dissolution or parenting plan does not provide reasonable time with
the parent with whom the child does not reside a majority of the time, and
further, the court finds that it is in the best interests of the child to
increase residential time with the parent in excess of the residential time
period in (a) of this subsection.
Major Modification
RCW
26.09.260 (1)
….court
shall not modify a prior custody decree or a parenting plan unless it finds,
upon the basis of facts that have arisen since the prior decree or plan or that
were unknown to the court at the time of the prior decree or 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. 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 (2)
In
applying these standards, the court shall retain the residential schedule
established by the decree or parenting plan unless:
(a) The parents agree
to the modification;
(b) 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;
(c) 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
(d) 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.
Due
to the requirement of adequate cause, the initial petition and supporting
pleadings need to be drafted very carefully to maximize the petitioning
parent's opportunities for success.
Additionally, the statute also provides that if the court finds a
modification action has been brought in bad faith, the court shall assess
attorney’s fees and court costs against the moving party. As a result, it is very important for parents
to have competent family law counsel when making decisions regarding parenting
plan modifications.
Family law litigation can be emotionally difficult and complex.
Decisions made about each step of the litigation can affect you for many years.
We have years of experience helping our clients through the difficulty of
family law and modification actions and can help you through the process.
Contact us today at (253) 838 – 3377 or email at office@bainslawfirm.com, to talk about your case.
Disclaimer: All materials provided on this website have been
prepared by Bains Law Firm for general information purposes only and
no representation is made as to their completeness or accuracy. Information on
this website is not intended as legal advice, and may not be relied upon as
such. Only an attorney who can review the unique facts of each case and apply
them to the statutes, case law and court rules can provide legal advice.
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