Changing your final parenting plan or parenting plan decree requires leaping a few hurdles. These are designed to dissuade a party from easily disrupting the lives and routines of the children involved. The process of modifying a parenting plan can be difficult for the non-attorney. The legal bases for modification can overlap with other statutory provisions addressing relocation of a parent, or changing a custodial parent. You should get good legal advice if you want to alter your existing plan.
What do you need to show in order to change a parenting plan?
RCW 26.09.260 is Washington's statutory guide to modifying parenting plans or custody decrees. The statute does not encourage modification of parenting plans. Under the statute, a major hurdle to overcome is a showing of "substantial change in circumstances." The existing parenting plan stays in place unless one can demonstrate a substantial change based on facts that have arisen since the time of the prior decree, final parenting plan or custody order. These facts must be new events - a new set of circumstances - so as to justify the modification.
In very limited situations, however, you do not need to show a substantial change in circumstances. Specifically, if the parties agree to the changes to the parenting plan, or if a child has been integrated into the home of a noncustodial parent (in contradiction to the parenting plan), then a party can modify a parenting plan without having to jump over that initial hurdle. In addition, if the child's current living situation is so harmful (that it would be better to change it), or if a parent has been held in contempt of a parenting plan/custody order (2 times in the last 3 years), or if a parent has been convicted of custodial interference - no showing of a substantial change in circumstances is needed.
What kind of changes are to be made to the plan?
If a major modification of the plan is being sought, the court looks at the changed circumstances of the either the child or the parent who is not seeking to modify the parenting plan. This makes it more difficult to justify significant changes to a parenting plan. A change in custodial parent would be considered a major modification.
If a minor modification or adjustment to the residential time is sought, then the court will look at the circumstances of either the child, or the mother or father, and whether it has changed substantially since the entry of the last. The court can make a minor adjustment of the parenting plan based upon a change in the residence of a parent (whom the child spends less time with), or upon an involuntary change in a parent's work schedule (which makes it very difficult to follow the existing parenting plan).
This may sound a less scrutinizing, but in a minor modification, the court can only adjust the residential schedule in the plan by no more than 24 full days. If a court provides for an adjustment that is more than 24 full days, the change in residential schedule cannot exceed 90 overnights per year - and this is only if a parent (whom the child spends less than a majority of residential time) does not have "reasonable time" with the child under the existing residential arrangement, and the increased overnights are in the best interest of the child.
What else must be considered?
As with all matters involving the development of a parenting plan, the best interest of the child must be considered. RCW 26.09.002, RCW 26.09.187. The modification must be shown as necessary to serve that interest. RCW 26.09.260(1).
How does a commissioner or judge hear a modification action?
The court must first signal that a modification action can proceed to trial. A commissioner must find that there is "adequate cause" to modify. This happens at a preliminary, adequate cause hearing. At that hearing, the court considers whether the facts supporting the substantial change in circumstances were not anticipated at the time the final orders were entered. The facts must not be mere allegations. If adequate cause is shown, then the matter can proceed to trial and before a judge. Before the trial, the party seeking a modification can ask that a court adopt a temporary parenting plan.
Authored by Catherine G. Victorino, Attorney at Law