Parenting Plans and Time-Sharing
Children grow and, often times, their needs and desires change. This may warrant amending or modifying your parenting plan. The good news is that parenting plans are easily modifiable if the changes are agreed to by both parties. It is always a good strategy to discuss these issues with the other parent prior to commencing litigation. You should contact an attorney to assist with such modifications or amendments because they must be submitted to and adopted by the court in order for the new parenting plan to be in effect and enforceable.
We can confer with the other parent, or their counsel to make changes or replace the prior agreement with a new parenting plan. We would consult with you as to the changes and would exchange drafts of a new agreement with the other parent, or their counsel, until a final agreement memorializing the final terms of the parenting plan is reached. Both parties then sign the new agreement and then it is filed with the court and an order adopting the new parenting plan is entered by the judge. By filing the new amendment or plan, you are protecting yourself from a potential claim by the other parent that the changes were never made or a new plan never existed.What if the Other Parent Won’t Agree to Change the Parenting Plan?
If the other parent refuses to modify or amend the parenting plan, you can seek court intervention. You will have to file a petition to modify the parenting plan or final judgment and specify the changes you are seeking. The petition must contain a short and plain statement about the substantial change in circumstances that required the requested changes. The petition needs to be served upon the other party for the litigation to commence.
The court will hold an evidentiary hearing, or trial, for both parties to present their case. At the hearing, the judge will make the decision based upon whether there has been a substantial, material, unanticipated change of circumstances and that the modification is in the best interests of the child. This means that the change of circumstances must be permanent and must not, or could not, have been anticipated by the parties at the time the original parenting plan was entered.
It is important to prepare for the hearing. You will have to present testimony of witnesses and evidence supporting your petition. It is recommended to have an attorney to assist with any hearing preparation and representation at the hearing, although it is not required by law. Such preparation may include calling witnesses, such as relatives, school teachers, physicians, and other people who have knowledge about the facts alleged in the petition. It may also include gathering documents like report cards, photographs, medical records, or any other helpful documents involving the child.
If you prevail at the hearing, the judge will provide a date upon which the new parenting plan or amendment goes into effect and both parties will have to abide by the revised plan after this date. If your petition is denied by the court, it is difficult to challenge the ruling unless there are grounds for an appeal or another substantial, material, unanticipated change in circumstances arises. You should consult with an attorney if you are seeking to modify a parenting plan or appeal any denial of your petition to modify a parenting plan or final judgment.What if the Other Parent Refuses to Honor the Parenting Plan or Hasn’t Been Complying with the Parenting Plan?
In addition to changing a parenting plan, you can also seek to enforce the parenting plan if the other parent is not following the plan. When one party refuses to follow a court order, that party can be held in contempt – civil or criminal. Contempt is a term which means the refusal to obey a court order. Civil contempt is when a party is able, but willingly refuses to comply, with the court’s order. In order to be found in civil contempt, the court must determine that the order was clear and that the party had the ability to comply and willfully refused to do so. Civil contempt is designed to encourage the other party to comply with the court’s order whereas criminal contempt is designed to punish the noncompliant party. Both types of contempt are punishable by fines, and/or imprisonment and other types of sanctions. Civil contempt is typically sought in family cases.
You can fil e a motion for civil contempt and enforcement of the parenting plan. As with modification proceedings, a hearing is also set on the motion for contempt and enforcement. Certain procedural rules must be followed before a court can find someone in contempt and proper evidence must be presented at the hearing. It is wise to retain an experience attorney to assist you with such hearing to invoke the court’s contempt powers and coerce the other parent to comply with the parenting plan.
If you are seeking to change your parenting plan or wish to enforce the parenting plan against a noncompliant party, please contact us for assistance.