When you complete a divorce or custody proceeding, the court enters a “Final” Parenting Plan that defines the rights and responsibilities of the parties with regard to the care of and contact with the children. But a Final Parenting Plan is very often not truly final. Circumstances change, children change, and parents change. And the law makes room for you to modify your parenting plan when it is in the best interests of the children to do so.
The law and procedure are complicated, and although this summary addresses some of the frequently asked questions, it is not a substitute for a consultation with an attorney experienced in this area of law. If possible, you should consult with an attorney with experience in the county where the case will be litigated, which may be either the county of the original parenting plan or the county in which the child or children currently reside. If the parenting plan or custody decree was signed by a court in another state or another country, check with a lawyer to determine whether Washington is the appropriate place to initiate your petition.
What do I need to prove for a change of custody?
Generally speaking, it takes unusual circumstances in order to bring about a major modification to an existing final parenting plan, which involves a request either that the children change their primary place of residence from one parent to the other or that there be a substantial change in the number of overnights spent with each parent. A major modification requires that there be a substantial change in circumstances of the child or of the parent not seeking to modify the existing plan. In other words, a parent can not seek a major modification of a parenting plan based on an improvement in his or her own circumstances.
Because the law presumes that stability in residential placement is in a child’s best interests, it is necessary to show that the change of circumstances that has resulted or will result in an actual detriment to the child or children and that the benefit to the children of the change in placement outweighs the harm of the change. Consequently, a modification of a parenting plan is not simply a reconsideration of the original parenting plan. At the time the original parenting plan was decided, it was a matter of deciding which placement would be best for the children. In a modification action, the court, in effect, begins with the presumption that it is best for the children to stay where they are.
As difficult a burden as it is for a parent to prove that there is a basis for a major modification, it happens frequently. You can imagine, and may even be experiencing, some of the reasons why it might be necessary to change placement of the children: (1) The custodial parent is abusing alcohol or other drugs; (2) the custodial parent is being abusive or a new partner of the custodial parent is being abusive to a child; (3) the child or children’s attendance at school is very poor and the custodial parent is making insufficient efforts to correct the problem.
What if my son or daughter just wants to come live with me?
One of the most common misconceptions about the law is that there is an age at which a child may decide with which parent he or she resides. Nothing in the law gives a child that power while he or she is still a minor. Upon the child’s 18th birthday, the parenting plan no longer applies, and the child is free to choose to live with either (or neither) parent. Until that point, decisions are made for them, if not by the parents then by the court.
Having said that, the parenting statute does direct the court to consider the wishes of a child who is of sufficient age and maturity to express a reasoned preference as to his or her residential schedule. In most Washington counties, the child’s preference would be expressed through a parenting investigator or guardian ad litem, although the parenting statute authorizes a trial judge to meet with and interview a child in chambers. Only under rare circumstances would a child actually testify, and most courts, as a matter of policy, will not accept or consider a written declaration from a child.
In summary, the older and wiser that a child is, the greater the weight that will be placed on his or her preferences. But in any case, the child’s desire for a change in residence is not by itself sufficient grounds for a court-ordered major modification of the parenting plan.
What if my children have already moved in with me?
If your child or children have been living primarily with you even though the parenting plan calls for them to reside with the other parent, this may be grounds for a modification of the parenting plan even if you don’t allege or can’t prove that the other parent’s custody is detrimental to the children. If the other parent has either agreed or acquiesced to this arrangement, you may petition for modification of the parenting plan based on the child’s integration into your home with the consent of the other parent. This situation may arise, for example, where the custodial parent is having difficulty with parenting, where the non-custodial parent is better equipped to deal with a need of the child, or where the child has requested a change in residence. Whether the court grants this request may depend on a number of factors, including the length of time the child has resided with you, whether the custodial parent intended the arrangement as temporary or experimental, and how the child has adjusted to the change.
What is the process of asking for a change of custody?
The first step in seeking a change of custody is to file a petition for modification of the parenting plan. Depending on the grounds for the modification, you may also ask the court for a temporary custody order while the case is pending, or even an ex parte emergency custody order if there is significant risk to the child (or if the child is already residing with you).
When you serve the other parent with the petition, you will typically also serve them with a notice of a hearing for the court to determine whether there is “adequate cause” to proceed with your petition as well as any sworn statements and/or documentation supporting your request. In the absence of an emergent situation, most courts will require that this hearing be set for a time at least 20 days following the service of the petition and summons.
At the “Adequate Cause” hearing, the court will determine whether you have presented facts which, if proven, could justify a major modification of your parenting plan. This is a kind of gatekeeping hearing at which the court will dismiss your case if it finds that it lacks merit either because the allegations don’t rise to the level of a major modification or because the evidence you present to support your petition is weak or not admissible.
Your opinions about the quality of the other parent’s parenting, or conclusory statements like “He’s abusive” or “She’s an alcoholic” will not be enough for you to leap this hurdle. Nor will hearsay statements about what the neighbor or the teacher or the day care provider told you. If third parties have provided you with information, make every effort to have those third parties present this information in sworn written testimony or give you documentation, such as grade and attendance reports, medical records, photographs, etc., to present to the court along with your petition.
What Happens if the Court finds Adequate Cause?
If the court, after reviewing the evidence presented, finds that the facts if proven could be grounds for a major modification, it will find that there is “adequate cause” to proceed with the case. At that point, the court may order temporary changes to the parenting plan and will often appoint a guardian ad litem or parenting investigator to look into the allegations and report back to the court. The court will also authorize the case to be set for a trial.
If you are considering or defending a modification of your parenting plan, please contact us for a consultation by calling (360) 357-5700.
