If it’s broken, how do we fix it?

Okay, so maybe broken is too strong. But, when a parenting plan is no longer in a child’s best interest, something must be done. When it comes to children, nothing is ever final. Parents change, children change, situations change, and modifications happen. At the same time, children usually do best with stability. But what if that stability is not what is set out in the current order? What do we do, and where do we start? Well, it depends (that all-time favorite lawyerly answer).

First, the Court always retains jurisdiction to modify parenting plans when it is in the child’s best interests to do so. In a nutshell, if life has happened, as life wants to do, and changes have occurred, the Court can change the plan. That change can happen by agreement of the parents, or by an order of the Court after a trial, but the final say is the Court’s.

Second, Court’s do not act until a parent asks for action. Meaning, that if a modification is to happen then a formal motion must be filed. That motion and proposal must be presented to the other parent, they must be given an opportunity to object, and to forward their own proposal.

Third, the procedure for filing the motion depends how the current parenting plan came into being. If the parenting plan was arrived at by an agreement of the parties, and the Court approved the plan based upon that agreement and without hearing evidence, then the request for modification should be sufficient to allow the Court to consider the motion. However, if the current parenting plan was established after an evidentiary hearing, then any changes to that plan can only occur if there has been a material change in circumstance such that the current plan is no longer in the child’s best interests. That concept is call res judicata, which is fancy lawyer-speak for only litigating issues once. If a Court heard evidence concerning parenting time, then that evidence is off limits for future motions.

Knowing all that, and understanding there is no one way to address a modification, we have found the best way to be:

1. Make sure you identify the problems with the current parenting plan, and develop a clear proposal to resolve the problems.
2. Before filing the motion (if there is not an emergency) contact your lawyer and discuss the issues with her/him.
3. If possible, discuss the issues with the other parent and see if you can come to an agreement.
4. If you cannot come to an agreement, discuss with your lawyer how best to proceed. Usually, we contact the other parent, or their lawyer, and see if an agreement can be reached prior to filing a motion. While that may seem like an extra step, and possibly giving the other parent more time to prepare and respond, we find that being able to tell a Judge you tried to resolve the issue yourself before simply filing the motion is best. Judges like it when parents make the difficult decisions themselves, and it shows you are willing to try and co-parent, which is always good for the child.

Assuming you have tried all those steps, and you cannot come to an agreement, then filing the motion to modify will have to be done if the situation is to change. That said, filing the motion should not be something done lightly, and the old axiom of being careful of what you wish for because you may get it, rings true. If you ask a Judge for a change she/he may make a change, but it might not be what you had in mind. That is not to discourage a parent from doing what they feel is in the child’s best interests, but rather to be certain that such motions are not done on a whim or out of anger. Judges favor the status quo when it comes to children, and Judges have considerable discretion regarding children. The last thing a parent wants after asking for a modification is a decision that essentially makes no change in parenting time or (gulp) lessens the parenting time prior to the motion being filed.

So if you find yourself in a position where you need to modify the current parenting plan for your child’s best interests, you might keep the following points in mind:

• Make sure you document what can be documented. Do not be obsessive and keep every text, email, or record all conversations. But if there is something you believe supports the point you are trying to make, then make sure you have a copy.
• Do not overly involve the child, or make statements about how you are going to try and change the situation. Oftentimes it is a parent saying they are simply doing what the child wants, and they in turn have had discussions with the child and promised to “fix” the situation. While the wishes of the child should be considered, involving the child in a battle for parenting time is not only not in the child’s best interests, but will certainly be frowned upon by the Court.
• Be patient, calm and reasonable. I know, easy to say and sometimes impossible to do. And be realistic and forgiving of yourself when you are not always able to meet this goal. Try to make it your first, second and third steps though. Trust me, it will pay off with a Judge later at trial if you are consistently the parent that is being civil.
• Don’t let the situation degenerate to the point of no return, and remember that while the situation concerning the child is not ideal, or may even be bad, it can always get worse.

Above all, remember there really is no “fix”. You may end up changing the situation for the better, but it is important to remember the change is for the situation now. It is rare to find a case where no other changes occur. Again, life happens. As life happens the Court always can make another change if it is best for the child. So if you find yourself in the unenviable position of having to file a motion to modify, remain calm, keep the love you have for your child in the front of your mind, and take deep breaths. This too shall pass. Thanks again for reading.