When can a Child Visitation Plan be Modified?
Child custody and visitation plans, also known as parenting plans, can be modified if substantial circumstances change that affect the welfare of the child and if the requested modification is in the best interest of the child.
Specific changes that may warrant a modification will be discussed in greater detail below.
Physical relocation
When a custodial parent moves, this is not automatic grounds for a modification but should be factored into the decision. A court will typically grant a modification if one of the following is true:
- The move would present a significant burden on the noncustodial parent to adhere to the current schedule.
- The move would have a significant negative or positive effect on the child in some other way.
The parents or court can include limitations on the custodial parent’s ability to relocate in the agreement.
Refusal to Follow Agreement Terms
Whether a parenting plan was agreed upon or ordered by a judge, both parents are expected to adhere to its terms. The requesting parent must properly notify the other parent of requesting a modification and present evidence demonstrating that the violations are a significant change in circumstance that affects the child’s well-being.
The other parent may also be held in contempt of court for violating the order.
The Needs of the Child Have Changed
A child may require a different environment in order to appropriately adjust to a different stage of life, which may make one home more suitable for the child’s needs than the other.
Additionally, if a child develops a mental, emotional, or physical disorder and one parent is better equipped to care for the child’s needs, a judge may permit a modification.
In both of these cases, the requesting parent must demonstrate how the changes are substantial and how they affect the child.
A Change in the Parent’s Situation
When a parent requests a modification based on a change in his or her own life, the parent must demonstrate that the change is substantial and will significantly affect the child’s well-being.
These changes can be either positive or negative changes and may include a recovering addict requesting custody or a parent going to jail.
The Child is in Danger
The best interest of the child is at the heart of every family law case. Endangerment is one of the more compelling reasons for a judge to modify an agreement. If a parent is engaging in activities that place the child in danger, then the court may change, remove, or limit that parent’s right to physical custody.
Behavior that may be considered a danger to the child include:
- Physical, emotional, sexual, or psychological abuse
- Either through action or inaction, placing the child in circumstances that put them at risk of abuse by others
- Drug or alcohol abuse that places the child in danger of harm or creates a negative influence
- Serious mental health concerns, such as psychotic breaks, hospitalizations, unstable or erratic behavior.
If a parent believes that their child is in danger, they should call the police.
What is the Process for Changing an Existing Visitation Agreement?
The process for requesting a modification may vary depending on the jurisdiction. The following is a general list of steps that are involved:
- Consult a lawyer: Neither parent is required to have a lawyer, but an attorney at Brighter Day Law can advise a parent on the specific situation and the legal process undertaken. An attorney can also assist in gathering evidence to support claims.
- File a modification petition: A modification petition will outline the reasons for the change and the proposed new arrangement. This should be filed with the court that originally issued the order.
- Serve the other parent: The other parent must receive the petition and other legal documents outlining the requested change. This parent will typically have the opportunity to respond within a set timeframe.
- Discovery: The discovery phase involves gathering evidence to support the requested change. This evidence may include witness statements, medical records, school reports, or other documentation related to the reason for the change.
- Mediation: A court may appoint a neutral third party to help parents reach an agreement outside of court. Mediation may be a faster and less expensive alternative to resolve these disputes.
- Hearing: If mediation fails, a judge will hold a hearing to listen to the arguments and evidence from both parents. The judge will ask both parents to present their case and answer questions.
- Decision: The judge will issue a final ruling on if the modification was accepted and what the new agreement is. This decision will be made in the best interest of the child.
What Evidence is Used to Establish Grounds for a Modification?
A lawyer will be able to help a parent determine what information and evidence is needed to substantiate a claim. Common evidence includes but is not limited to the following:
- A report showing actual parenting time compared to scheduled time
- A custody journal with notes detailing problems as they occur
- Records demonstrating that police or the court were required to enforce the order
- Documentation showing a parent’s move or new work schedule
- Statements from doctors, teachers, caregivers, and other witnesses
- Medical, school, work, criminal, and other official records
- Photos, emails, texts, social media posts, and other unofficial records supporting the claim
Do You Need an Attorney?
Working with an experienced attorney can help ensure the results that you are seeking and they align with your child’s best interests. Our lawyers know the system and are prepared to fight on behalf of you and your child. Call Brighter Day Law at 719-733-9129 or fill out a contact form to schedule your free case evaluation.