–by Mark Molay, Family Law Attorney in Everett, WA
This article provides a general explanation of how to modify a parenting plan in Washington State. Notably, this article focuses on modification of a final parenting plan, not a temporary parenting plan, and not child support.
Washington courts classify a would-be change to a final parenting plan as either a “major modification” or “minor modification”. Regardless of whether the modification is “major” or “minor”, the initial threshold requirement is the same: there must be a “substantial change” in the circumstances of a party or child, and the change must not have been within the anticipation of the parties at entry of the existing parenting plan or custody order. In other words, not just any change entitles a party to seek modification of the final parenting plan. The change must be unexpected and sizeable. The reason for this is that courts do not have the capacity to reexamine parenting plans each and every time a child or party has a change in circumstances. Moreover, courts want consistency in children’s residential arrangements.
For a “major modification”, the change in circumstances must be one that affects the child or the “nonmoving party” (the parent who is not requesting modification) rather than the requesting party. In addition, the party who wants to change the final parenting plan must establish that the modification is “in the best interest of the child and is necessary to serve the best interests of the child.” Lastly, the change in circumstances must fall under one of the following four criteria:
- The parents agree to the modification of the residential schedule. This is, in itself, sufficient basis to modify the parenting plan in most cases. The court rarely analyzes the other above-stated factors when the parents agree to modify the parenting plan;
- The child has been integrated into the family of the parent who wants to change the parenting plan with the consent of the other parent in “substantial deviation” from the parenting plan. This typically means the child is spending much more residential time with one parent than the parenting plan provides, and this deviation from the parenting plan has remained in place for several months or more;
- The child’s current environment is detrimental to his or her physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child. To satisfy this requirement, the detriment or danger to the child generally must be quite severe. Common dangers of this type include a parent’s drug dependence, alcoholism, physical abuse, or sexual molestation; or
- The court has found the other parent in contempt of court at least two times within three years because that parent failed to comply with the residential time provisions in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree. In fact, the statute expressly provides that a conviction of custodial interference in the first or second degree under Washington law shall constitute a substantial change of circumstances for this statute.
The criteria for a minor modification (also called an “adjustment”) to the final parenting plan are less onerous than for a major modification. As a result, an adjustment cannot change the residence at which the child is scheduled to reside the majority of the time. This is the primary difference between a minor modification/adjustment and a major modification.
To qualify as an allowable adjustment, the requesting party must also show that the proposed modification:
- Does not exceed twenty-four (24) full days in one calendar year; or
- Is based on a change of residence of the parent with whom the child(ren) does not reside the majority of the time or an involuntary change in work schedule by a parent that makes the residential schedule set forth in the parenting plan impractical to follow; or
- Does not result in a schedule that exceeds ninety (90) overnights per year in total, if the court finds that, at the time the petition for modification is filed, the decree of dissolution or parenting plan does not provide reasonable time with the parent with whom the child does not reside a majority of the time, and also, the court finds that it is in the best interests of the child to increase residential time with the parent in excess of twenty-four (24) full days in one calendar year. Please note that the statute also provides that any motion brought under this subsection of the statute is subject to the four (4) factors identified above for a major modification if the party who wants the modification has previously been granted a modification under this same subsection (that is, for the same reason) within twenty-four (24) months of the current motion.
In Washington, a party can petition for parenting plan modification in the county in which the final parenting plan was entered, the county in which the child(ren) reside, or the county in which the primary care parent resides. The requesting party should serve the other parent with the Summons, Petition for Modification, Proposed Parenting Plan, and a Notice of Hearing for Adequate Cause Determination, Motion for Adequate Cause Determination, and declarations.
The Notice of Hearing is extremely important. It expressly advises the other parent that the court will conduct a threshold hearing on whether “adequate cause” arguably exists for modification of the parenting plan (“Adequate Cause Hearing”). The Notice also identifies the date, time, and location of the Adequate Cause Hearing. At the hearing, if the court determines there is adequate cause to proceed, the modification action may continue. If the court finds no arguable basis for modification, the petition for modification is dismissed (the modification proceeding ends).
One common way for a party to proceed is to schedule a Motion for Temporary Order on the same date as the Adequate Cause Hearing. This will allow the court to enter a temporary parenting plan if it finds adequate cause for the modification proceeding to move forward.
After entry of the Temporary Order, the case proceeds as a dissolution case would proceed. The parties are able to conduct discovery if they choose to do so. If the parties are able to work out a resolution to the parenting plan issue(s), they can present an Agreed Order that completes the case. If the parties are not able to work out a resolution to the issue(s), the case will proceed to mediation with the mediator trying to assist the parties in reaching an agreement on the issue(s). If mediation is not successful, the case proceeds to trial.