One of the most contentious issues in any divorce is parenting time and child custody. Even after a divorce is finalized and the parenting orders are in place, parents are often unprepared for the lack of time they have with their child.
It is important to understand that a parenting time agreement can be modified. In fact, a child custody order can also be modified under certain conditions. The primary issue a parent will have to deal with in deciding to file a modification of parenting time is whether the change is in the best interest of the child. California courts often encourage parents to review their parenting plan every couple of years to ensure the plan still works — not only for the parent, but for the child.
Parental Agreement on Parenting Time Modifications
If both parents agree that a modification should be made for any reason, they can jointly modify the plan, fill out the proper forms, and have it reviewed by an experienced family law attorney. Once the documents have been reviewed, the parents can request a court date to have the plan approved by the court. The forms which have to be filled out include:
- Request for Order (Form FL-300)
- Child Custody and Visitation (Parenting Time) Application Attachment (Form FL-311)
These forms provide specific details such as new visitation schedule, schedule for holidays and special family events, and other details which will help ensure your parenting plan is complete.
Once these have been reviewed by your attorney, you can then file the forms with the court. In total, you should have three copies of the form for the clerk — the clerk will maintain one copy, and each parent should have their own copy once they have been marked “filed” by the clerk.
Typically, in these cases, the court will approve the plan unless they feel there is an egregious issue which impacts the child negatively.
So, what happens when parents do not agree that the plan should be changed? The same forms must be filled out, but you will be required to show that the situation has changed considerably to justify the changes being requested.
Demonstrating Situation Changes are Considerable
In order to facilitate a change when one parent does not agree on parenting time modifications, before you can request a change you will have to demonstrate there has been a considerable change in circumstances. Some types of significant change may include:
- Change in parent’s work schedule
- Change in parent’s work location
- Change in how much time the child wants to spend with a parent
- New living conditions due to the remarriage of one or both parents
To prove there is a significant change, the court may require documentation which may include work records showing changes in schedule or location, photographs of the child being involved more heavily with one parent or the other, or specific official records. Depending on the age of the child involved, a statement from the child may be appropriate as well. Your family law attorney can help you review the initial forms and advise you about what supporting documents will be needed.
In addition to the forms you would take to the court clerk in situations where the parents agree on a modification, there are additional steps you must take when the parent does not agree. Once the clerk has marked the copies as “filed”, the following should take place:
- Serve papers — along with a blank copy of Responsive Declaration to Request for Order (Form FL-320), papers will have to be served to the other parent. The person serving the papers may be a law enforcement officer, an official process server, or another adult who has no direct relationship to either parent.
- Proof of service — after the service has been completed, the server will be required to fill out Proof of Personal Service (Form FL-330) and you will be responsible for ensuring it is filed with the court. This is to demonstrate you have followed the rules and made sure the other parent is aware of your intention to modify the plan.
Keep in mind, your family lawyer can help ensure these forms are all prepared correctly, help you identify a server if needed, and be there to guide you through the process and answer any questions you may have about the next steps.
Understanding Best Interest of the Child
It is important to remember the court will always keep the best interest of the child in mind. This means, regardless of whether the parents agree on a new parenting plan, or disagree, the court will look at the plan with the child in mind. The older the child, the more likely the court may ask for their input. In general, the court will review:
- The stability of the child’s environment
- The capacity of the parent to care for the child properly
- The intention of the parent to ensure a stable relationship with the noncustodial parent
- Anything else the court deems appropriate
As children get older, they may express a desire to spend more time with a non-custodial parent. Unless there are some specific reasons why this would not be a desirable situation, these requests may be approved by the court, particularly if both parents agree on the modification.
Building Your Case for Modification
The process of establishing a parenting time modification can be challenging and building a case for modification must be done carefully. While sometimes parents can agree, if you and your ex-spouse cannot agree on the modification, having your attorney involved is imperative.
When you meet with an attorney, make sure you have specifics regarding why you believe a modification is in the best interest of your child and allow them to help you substantiate that claim.
To meet with Attorney Bishop to discuss parenting plan modifications, please call our San Diego office at 619-724-4148 or send us an email to arrange a free telephone consultation. We represent people throughout San Diego County and Southern California in a wide range of cases involving family law matters.