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Modification to Parental Rights
It is highly likely that parties’ circumstances will change after a permanent parenting plan has been in place. For example, children enrolling into school, changes in jobs, either party moving, and/or changes in schedules. Sometimes these changes render the current parenting plan unworkable for the parties and the children. Therefore, a modification to an original parenting plan may be necessary.
The original parenting plan is established by the “best interests of the child” standard. The factors a court considers in determining the best interests of the child are:
- The preferences of the child’s parents;
- The preference of the child as to parenting time provided the child is of a maturity level capable of stating an independent preference;
- The nature of the relationships and interaction the child has with each parent, any siblings, and any other person who may have a significant affect on the child’s best interests;
- The manner in which the child is acclimated to his home, school, and community;
- The physical and mental health of all parties involved. However, a disability alone cannot be used as a determining factor;
- The ability of each parent to foster and encourage a loving, affectionate, and continuing relationship between the child and the other parent;
- The past patterns of the parents and whether or not the history reflects a system of time commitment, values, and mutual support;
- The proximity of the parents’ home to each other as it relates to practical parenting time plans;
- Any evidence that either parent has been a perpetrator of domestic violence or any evidence that either parent has been abusive or neglectful to the child;
- The capability of each parent to place the needs of the child above his or her own needs.
To modify parenting time and/or decision making the courts will generally use the best interest of child standard. However, if the requested modification would also change the majority residential parent, the court can only change it if new facts have arisen since the original decree and:
- The parties agree to the modification;
- The child has been integrated into the moving party’s family with the consent of the other party;
- The majority residential parent is seeking to relocate with the child; or
- The present environment endangers the child’s physical health or significantly impairs the child’s emotional development, and the advantage of changing residence outweighs any harm such a change would cause.
A parent cannot file a motion to modify parenting time which also seeks to change the majority residential parent within two years after a prior motion to modify parenting time has been ruled on, absent any endangerment to the child.
If a modification to an existing parenting plan is necessary there are several ways to make the necessary changes to the parenting plan. Parties can attempt to agree to modify any terms of the parenting plan to accommodate the change in circumstances. Parties must reduce these agreements to writing and must file it with the court so that any modifications are enforceable. However, if the parties cannot agree to the necessary changes they may file a motion with the court to modify the current parenting plan. As stated above the standard of review is dependent on the modifications sought to the enforceable parenting plan.
Glen B. Goldman
Emily T. Roberts
Douglas A. Thomas