Modifications
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.
|
