Parenting Plan Modification
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
RCW 26.09.260 (5)
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. Nothing in this website shall be construed to create an attorney-client relationship.
