OVERVIEW OF MODIFICATION OF PARENTING PLANS
Thank you for your interest in our office and our legal services. It is our goal to provide you with professional and efficient legal services. In order to make you more fully aware of the future course of your parenting plan modification proceeding it is important that you have full and complete information regarding the process through which your case will continue until its final conclusion.
Disclaimer: The following overview of the parenting plan modification process is intended for information only and is not intended as a substitute for meeting personally with Gregory L. Davies and getting legal advice regarding your specific matter.
Please visit our website at www.gregorydavieslaw.com for more information about our office and the legal services we provide. When visiting our website please like us on Facebook by clicking on the Facebook icon on our website home page lower right hand corner.
A parenting plan modification proceeding can be complex and confusing. Whether you decide to process your parenting plan modification case yourself or hire our office to work with you there is no substitute for proper legal advice to ensure your parenting plan modification is properly prepared, filed, negotiated and finalized.
What is Modification of Parenting Plans?
Modification of Parenting Plans is a legal proceeding in which a court approved final parenting plan is changed or modified in some respect: change in the residential placement (physical custody) of a child; change in the residential time (visitation) of a non-residential parent with a child; or changing other provisions in a parenting plan. A modification of a parenting plan may be a “major modification,” a “minor modification,” or an “adjustment.”
A major modification is where the residential placement or physical custody of a child is changed from the residential parent to the non-residential parent.
Major modifications are generally not favored and for changes in the residential placement or custody the court will 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:
- 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.
Major Modification Factors:
In applying the above standards, the court will retain the residential schedule established by the decree or parenting plan unless one or more of the following factors are present:
(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
(e) The parent has been convicted of custodial interference in the first or second degree under RCW 9A.40.060 or 9A.40.070.
Minor Modifications and Adjustments of a Parenting Plan:
Minor modifications and adjustments to a parenting plan do not involve changes in the residential placement or custody of a child. Minor modifications and adjustments address changes in the residential time or visitation and other non-residential provisions of a parenting plan.
In most, but not all, minor modification or adjustment cases there is no need for a showing of any of the major modification factors listed above for a minor modification or adjustment of a parenting plan.
Reduce or restrict residential time or visitation:
The court may reduce or restrict contact between the child and the parent with whom the child does not reside a majority of the time if it finds that the reduction or restriction would serve and protect the best interests of the child using the criteria in RCW 26.09.191.
RCW 26.09.191 provides as follows:
A court will consider whether either one or both of the parents have any limitations that negatively impact the children or impair a parent’s ability to care for the children. Washington State statutes list the following limitations a court may consider:
(1) Willful abandonment that continues for an extended period of time or substantial refusal to perform parenting functions;
(2) Physical, sexual, or emotional abuse of a child;
(3) A history of acts of domestic violence or an assault or sexual assault that causes grievous bodily harm or fear of such harm;
(4) The parent has been convicted as an adult of a statutorily defined sex offense;
(5) A parent’s neglect or substantial nonperformance of parenting functions;
* "Parenting functions" means those aspects of the parent-child relationship in which the parent makes decisions and performs functions necessary for the care and growth of the child. Parenting functions include:
(a) Maintaining a loving, stable, consistent, and nurturing relationship with the child;
b) Attending to the daily needs of the child, such as feeding, clothing, physical care and grooming, supervision, health care, and day care, and engaging in other activities which are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
(c) Attending to adequate education for the child, including remedial or other education essential to the best interests of the child;
(d) Assisting the child in developing and maintaining appropriate interpersonal relationships;
(e) Exercising appropriate judgment regarding the child's welfare, consistent with the child's developmental level and the family's social and economic circumstances; and
(f) Providing for the financial support of the child.
(6) A long-term emotional or physical impairment which interferes with a parent’s ability to perform parenting functions;
(7) A long term impairment resulting from alcohol, drug or other substance abuse that interferes with a parent’s ability to perform parenting functions;
(8) The absence or substantial impairment of emotional ties between a parent and a child;
(9) The abusive use of conflict by the parent which creates the danger of serious damage to the child’s psychological development;
(10) A parent has withheld from the other parent access to the child for a protracted period of time without good cause; or
(11) Such other factors or conduct which the court expressly finds adverse to the best interests of the child.
Expansions of residential time or visitation:
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, and without consideration of the major modification factors set forth above, 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.
However, any motion under this subsection (c) is subject to the major modification factors set forth above if the party bringing the petition has previously been granted a major modification within twenty-four months of the current motion. Relief granted under this section shall not be the sole basis for adjusting or modifying child support.
A parent with whom the child does not reside a majority of the time who is required by the existing parenting plan to complete evaluations, treatment, parenting, or other classes may not seek expansion of residential time under subsection (c) unless that parent has fully complied with such requirements.
A parent with whom the child does not reside a majority of the time and whose residential time with the child is subject to limitations pursuant to RCW 26.09.191 (2) or (3) may not seek expansion of residential time under subsection (c) of this section unless that parent demonstrates a substantial change in circumstances specifically related to the basis for the limitation.
Failure to Exercise Residential Time or Visitation:
If a parent with whom the child does not reside a majority of the time voluntarily fails to exercise residential time for an extended period, that is, one year or longer, the court upon proper motion may make adjustments to the parenting plan in keeping with the best interests of the minor child.
For the purposes of determining whether the parent has failed to exercise residential time for one year or longer, the court may not count any time periods during which the parent did not exercise residential time due to the effect of the parent's military duties potentially impacting parenting functions.
Adjustments to Non-Residential Provisions:
The court may order adjustments to any of the nonresidential aspects of a parenting plan upon a showing of a substantial change of circumstances of either parent or of a child, and the adjustment is in the best interest of the child. Adjustments ordered under this section may be made without consideration of the major modification factors set forth above.
Consideration for Members of the Military:
If the parent with whom the child resides a majority of the time receives temporary duty, deployment, activation, or mobilization orders from the military that involve moving a substantial distance away from the parent's residence or otherwise would have a material effect on the parent's ability to exercise parenting functions and primary placement responsibilities, then:
(a) Any temporary custody order for the child during the parent's absence shall end no later than ten days after the returning parent provides notice to the temporary custodian, but shall not impair the discretion of the court to conduct an expedited or emergency hearing for resolution of the child's residential placement upon return of the parent and within ten days of the filing of a motion alleging an immediate danger of irreparable harm to the child. If a motion alleging immediate danger has not been filed, the motion for an order restoring the previous residential schedule shall be granted; and
(b) The temporary duty, activation, mobilization, or deployment and the temporary disruption to the child's schedule shall not be a factor in a determination of change of circumstances if a motion is filed to transfer residential placement from the parent who is a military service member.
If a parent receives military temporary duty, deployment, activation, or mobilization orders that involve moving a substantial distance away from the military parent's residence or otherwise have a material effect on the military parent's ability to exercise residential time or visitation rights, at the request of the military parent, the court may delegate the military parent's residential time or visitation rights, or a portion thereof, to a child's family member, including a stepparent, or another person other than a parent, with a close and substantial relationship to the minor child for the duration of the military parent's absence, if delegating residential time or visitation rights is in the child's best interest. The court may not permit the delegation of residential time or visitation rights to a person who would be subject to limitations on residential time under RCW 26.09.191. The parties shall attempt to resolve disputes regarding delegation of residential time or visitation rights through the dispute resolution process specified in their parenting plan, unless excused by the court for good cause shown. Such a court-ordered temporary delegation of a military parent's residential time or visitation rights does not create separate rights to residential time or visitation for a person other than a parent.
How to Start a Parenting Plan Modification case:
A parenting plan modification proceeding is started in the superior court by a parent of a child by filing a petition seeking a modification of a final parenting plan in the county where the minor children are then residing, or in the court in which the final order, judgment, or decree was entered, or in the county where the parent or other person who has the care, custody, or control of the children is then residing.
Washington State has adopted pattern forms that are required to be used in parenting plan modification proceedings. The pattern forms can be found online or purchased from the Snohomish County Superior Court Clerk. If you choose to prepare your own parenting plan modification case you will need to obtain the proper forms. Please refer to our website in “Services” under “Resources” for links to the Washington State forms website and the Snohomish County Superior Court Clerk’s website.
If you choose to hire our office to assist you with your parenting plan modification case our office will provide the appropriate pattern forms.
Current Filing Fee for a Non-Parental Custody:
The filing fee currently charged by Snohomish County Superior Court Clerk for a modification of a Snohomish County Parenting Plan is $56.00. For all non-Snohomish County Parenting Plan modifications the filing fee is $290.00.
Must be a Hearing on Adequate Cause:
The purpose of “adequate cause” is to impose a heavy burden on the party seeking a major modification of a final parenting plan to show good reason why the residential placement or custody of a child should be changed from the residential parent to the non-residential parent so that the non-residential parent will not file this type of motion to harass the residential parent.
A party seeking a major modification of a custody decree or parenting plan shall submit together with his or her motion, an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his or her affidavit, to other parties to the proceedings, who may file opposing affidavits. The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.
The contesting affidavits must result in "something more than minimal allegations which, if proven, might permit inferences sufficient to establish grounds for a custody change. There are two reasons for this. First, litigation is harmful to children. And, second, prior custody arrangements which follow sometimes complex litigation or negotiations should be given great deference. Adequate Cause must be found before a modification case can proceed.
What does adequate cause mean:
At the very minimum, "adequate cause" means evidence sufficient to support a finding on each fact that the party asking for a modification must prove in order to modify.
The facts a party must prove in order to modify have been summarized into four elements, all of which must be met in order to justify the modification:
(1) There has been a change in circumstances 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.
(2) The child's best interests will be served by modification.
"The best interests of the child is ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental, or emotional harm,"
(3) The present environment is detrimental to the child's well-being.
(4) The harm caused by the change in custody is outweighed by the advantage of a change in custody.
If adequate cause is not found by the court then the petition for modification will be dismissed. If adequate cause is found then the court will consider temporary custody and other matters related to custody.
Show Cause Motion for Temporary Custody:
A show cause motion is specific motion that requests the court to issue an order directing the non-moving party to appear at a set court date for a hearing on the moving party’s request for temporary pretrial matters. There is a pattern form Show Cause Motion and Order.
Generally, in contested cases, temporary orders are entered by the court for appropriate pretrial issues to include, but not limited to, mutual restraining orders, appointment of a guardian ad litem, various appropriate evaluations, a temporary parenting plan for the children, temporary child support, and temporary attorney’s fees and costs. These temporary orders remain in place until the court signs final dissolution documents.
The court requires all parents with minor children to participate in a mandatory parenting class. There is a fee for the class which is based upon a sliding scale tied to a parent’s income. Upon completion of the class, a Certificate of Completion is issued which must be filed with the court clerk.
If you have previously taken the mandatory parenting class, there is no need to take the class again. However, if you did not take the class for the adoption of the final parenting plan you must take the class before the court will consider a modification of the final parenting plan.
Guardian ad Litem:
In contested custody proceedings, and in other custody proceedings if a parent or the child's custodian so requests, the court may order an investigation and report concerning custodial arrangements for the child, or may appoint a guardian ad litem, or both. The investigation and report may be made by the guardian ad litem, the staff of the juvenile court, or other professional social service organization experienced in counseling children and families.
Criminal History Required:
Before granting any modified final parenting plan, the court will consult the judicial information system, if available, to determine the existence of any information and proceedings that are relevant to the placement of the child.
Agreement, Settlement or Mandatory Mediation:
Agreement or settlement is the preferred way to resolve a parenting plan modification case. Parties have more control over the final outcome, it is generally less expensive and quicker to reach an agreement or settlement. If the parenting plan modification case proceeds to trial the parties have lost control over the outcome and the expenses are greater. Parties may reach an agreement or settlement between themselves; parties may reach an agreement or settlement with the assistance of attorneys; or parties will be required to attend a mandatory mediation session with a neutral third-party mediator to try to reach an agreement or settlement.
If the parties have not reached an agreement or settlement either on their own or with the assistance of their attorneys, they are then required to attend mandatory mediation as a precondition for trial. Professional mediators generally charge between $250.00 to $300.00 per hour. Parties generally split this fee equally. Mediators expect to be paid before or at the mediation session. Parties engaging in mediation are expected to participate in good faith and make a reasonable effort to reach an agreement or settlement on any disputed issues. Parties are not required to reach an agreement or settlement and mediators have no authority to impose any decision on the parties regarding disputed issues.
Mediation sessions are confidential and neither party may disclose any discussions engaged in at mediation in any court proceeding. Mediators cannot be called as witnesses.
A trial will be necessary to resolve and finalize a parenting plan modification case if the parties are not successful in reaching an agreement or settlement. In Snohomish County a trial is assigned generally 4 to 5 months out and there is no pre-assignment of a judge for the custody case. A parenting plan modification case only goes to trial if the parties have engaged in mandatory mediation but were not successful.
At trial a judge will listen to both sides testify and present evidence regarding their respective positions and at the conclusion of the trial will render a decision detailing how the children are provided for both physically and financially.
The final parenting plan modification documents are then prepared by either the parties or their attorneys and then presented to the court for approval. Once the final documents are approved the parenting plan modification case is final.
Attorney’s Fees and Costs
Our attorney’s fees are based on an hourly rate along with an estimate of the amount of time we believe it will take to finalize your parenting plan modification case. Our current fees are listed on our website in “Services” under “Fees.” Parenting plan modification cases that are resolved by agreement or settlement will cost less than ones that are contested and must be resolved by the court or arbitrator.
Note to Do-It-Yourselfers:
If you choose to do your own parenting plan modification, we always recommend you have our office review your paperwork before you file it with the court. We do charge a minimal fee for this review or any other services you request. We also encourage you to consult with our office during the modification process as you feel the need. If, at any time, you feel overwhelmed with the modification process and doing it yourself we will be ready to take over your representation.
Our office keeps itemized billing records that are created at the same time as specific services provided for your case. This itemized billing statement is provided to you at the end of each month. You should review this billing statement carefully as it is not only a record of our time and charges for your case but also a record of our services provided.
Our office also prepares a written attorney fee agreement for each case. The agreement is signed by you and Gregory L. Davies. The original is kept in our client file and a copy is provided to you.
Thank you for your interest in our office and our legal services. If you have any questions concerning your parenting plan modification case (or any other legal matter), whether you hire our office to work with you or you are processing your modification case yourself, please contact our office to set up an appointment to meet with Gregory L. Davies.
To find our find out more about how our law firm can help you with your parenting plan modification needs, contact Gregory L. Davies, Attorney at Law, in Everett, Washington. Call (425) 259-2755 or email us.