This article explains how to modify a parenting plan in Washington State. Notably, this article focuses on modification of a final parenting plan, not modification of a temporary order. It also does not address the process of modifying a parenting plan when the primary care parent relocates.
The relevant law derives from RCW 26.09.260. It classifies 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. Courts also want consistency in children’s residential arrangements.
Table of Contents
I. Major Modification
II. Minor Modification
1. Where to File
2. What Always Need
3. What Need If Also Requesting a Change In Child Support
4. What Need for Adequate Cause / Temporary Orders
5. Filing & Serving the Documents
6. Shortly After Service: Hearing on Temporary Orders | Default | Parenting Class
7. Remaining Steps
I. Major Modification
A major modification is one that does not qualify as minor (see below). For the most part, a modification is major if it changes who has the majority of the time with the child or increases the non-primary care parent’s residential time by more than 24 full days per year.
The threshold for convincing a court to accept a major modification is quite high. Many attorneys describe it as the most difficult task in family law. 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.” Yet more, the change in circumstances must fall under at least one of the following four criteria:
- Agreement. 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.
- Integration by Informal Agreement. The child has been integrated into the family of the parent who wants to change the parenting plan with the consent or acquiescence 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, creating a new status quo for the child. Generally courts will not find integration unless the informal change in the child’s residential schedule has been in place for at least three to six months.
- Danger. 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.
- Contempt of Residential Provisions. 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 of the first degree or second degree. In this context, contempt means willful failure to follow the parenting plan’s residential schedule without good excuse and without the parties’ agreement.
II. Minor Modification
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 meets at least one of the following four criteria:
- 24 Day Increase. The proposed modification does not change a party’s residential time by 24 or more full days in one calendar year.
- Parent with Visitation Moved. The proposed modification is based on a change in where a non-primary care parent lives, and the relocation makes the current parenting plan impractical.
- New Work Schedule. The proposed modification is based on an involuntary change in a party’s/parent’s work schedule, and that involuntary change makes the current parenting plan impractical.
- Parent with Visitation Less than 90 Days. A) The proposed modification does not result in a schedule that exceeds 90 full days and overnights per year in total, B) the current parenting plan does not provide reasonable time with the non-primary care parent, and C) it is in the child(ren)’s best interest to increase the non-primary care parent’s residential time by more than 24 full days in one calendar year.
A party can use each of the four subsections for adjustments once every 24 months. If a party tries to modify the parenting plan under the same subsection before the 24-month prohibition expires, he or she must meet the criteria for major modification, identified above. This prevents against numerous small parenting plan changes.
Courts also often will not allow a non-primary care parent to adjust his or her parenting time upward without completing required evaluations or treatment listed in the current parenting plan.
If representing yourself, it may be helpful to download our firm’s outline of the procedure for parenting plan modifications. It contains check-the-box reminders and summarizes key points.
1. Where to File. The venue statute, RCW 26.09.280, can be misleading. It says a party can petition for parenting plan modification in the county that entered the final parenting plan, the county where the child(ren) live, or the county where the primary care parent lives. This is true to the extent Washington is the only place with potential jurisdiction over the case. If another state or country might have jurisdiction, this statute must be read in conjunction with the Uniform Child Custody Jurisdiction and Enforcement Act, often called the UCCJEA. In general, the UCCJEA says that a modification proceeding must take place where the current parenting plan was entered if a party or the child(ren) still live there. If the parties and child(ren) have moved, but at least one of them continues to live in the state, the modification proceeding should take place in the state that issued the current parenting plan. This is called “exclusive continuing jurisdiction”. If nobody lives in the state that issued the current parenting plan, the modification proceeding should instead take place in the state where the children have lived for the prior six months, excluding any temporary absences. This is called “home state analysis”. If the children moved within the six months prior to the petition, the courts of the involved jurisdictions conduct a UCCJEA phone conference to decide which location should proceed with the case. The exact method of initiating a UCCJEA phone conference varies according to each county’s local rules and norms. Speak at least briefly with a local practitioner or a local family law facilitator. Facilitators provide basic help for $10 per session.
2. What Always Need. Self-explanatory templates for all the forms you might use are available on the Washington Court Forms Website under Family Law > Parenting Plan Residential Schedule > Petition to Change a Parenting Plan. The party seeking modification will always need a summons, petition for modification, proposed parenting plan, case cover sheet, confidential information form, and filing fee. The filing fee varies from $30 to $205. Usually the cost is $56 to petition in the same county as the current parenting plan and $200 if the current parenting plan is from elsewhere.
3. What Need If Requesting a Change In Child Support. If you believe your parenting plan modification warrants a change in child support, ask for the child support modification through the same petition. Our firm has a separate article on the basics of calculating child support. A request for a change in child support requires the following additional supporting documents: child support worksheets, financial declaration, sealed financial source documents, and proposed child support order. The sealed financial source documents typically consist of your last two years’ tax returns, last two years’ W-2s, and paystubs for the current calendar year. Sealing them means to put a Sealed Financial Source Documents Cover Sheet on them as the top page.
4. What Need for Adequate Cause / Temporary Orders. Given that the average family law matter takes about a year, parties often need or want temporary orders that stay in place until the process ends. We have a separate article on How to Get Temporary Orders. We also have an article on How to Draft a Declaration, and it includes an example declaration in support of a motion for temporary orders in a parenting plan modification proceeding.
Typical topics for temporary orders in this context include a temporary modified parenting plan, temporary modified child support order, appointing a Guardian ad Litem, suit money (attorney fees), and an adequate cause determination. Either party can file a motion for temporary orders at any time, but the requesting party commonly does it at the beginning of the case. The first person to file the motion for temporary orders gains a procedural advantage over the party responding to the motion.
When preparing your documents for the motion on temporary orders, make sure to include a motion for adequate cause, notice of the adequate cause hearing, and proposed order on adequate cause. This ensures the court will conduct a threshold determination on whether “adequate cause” arguably exists for modification of the parenting plan. Without an adequate cause termination, the court cannot enter any temporary orders. An adequate cause determination is also necessary before the case can proceed to trial.
Normally courts look for two things when making an adequate cause determination. First, the jurist determines whether the facts as alleged would satisfy the statutory requirements for modification, as outlined above. Second, the jurist decides whether the admissible evidence presented through the requesting party’s declarations would give the requesting party a credible chance of prevailing at trial. Do not assume courts find adequate cause easily. They generally do not. Make your case well.
Unlike other motions for temporary orders, a court cannot address adequate cause and temporary orders until 21 days after in-state service or 61 days after out-of-state service. Make sure to keep this in mind when selecting a date for the hearing on adequate cause and temporary orders.
If the requesting party cannot wait for temporary orders, he or she can instead request emergency ex parte orders, otherwise called immediate restraining orders. Click the link in the preceding sentence for an article on the topic. As the name suggests, immediate restraining orders go into effect immediately, but they are also rare. A motion for immediate restraining orders should include a request for a show cause determination on adequate cause and temporary orders 21+ or 61+ days after serving the opposing party, just as described above. This should make more sense after reading our article in immediate restraining orders.
5. Filing & Serving the Documents. The article on how to file a motion, which you have probably already read by now, also explains the process of filing and service. The instructions are repeated here for clarity. If you have already completed this step, skip to step III(6), below.
Make at least three copies of all your documents, for a total of at least four sets including originals.
A. Originals for the Court File. File the originals of the above-mentioned documents with the clerk’s office of the county where you are petitioning.
B. Copies for the Opposing Party. Have copies of all the documents served on the other party(ies). The exceptions are the case cover sheet and confidential information form, which only need to be filed with the court.
We have a separate article on how to serve documents, including what to do if you have difficulty effecting service upon the other party.
C. Copies for the State Prosecutor’s Office. If modifying child support and any party to the case receives state financial assistance, you should serve the state. Serving the state means giving the county prosecutor’s office copies of all documents you served on the opposing party. This enables the state to participate in the formulation of the child support order.
D. Working Copies. If requesting temporary orders, provide copies of the following documents as working copies for the judge or commissioner deciding the motion: all the document you drafted for the motion (see section III(4) above), the petition for modification of the parenting plan, and your proposed parenting plan.
E. Copies for Yourself. Keep copies of all documents for yourself.
6. Shortly After Service: Hearing on Temporary Orders | Default | Parenting Class.
A. Temporary Order Hearing & GAL Appointment. Normally the hearing on temporary orders takes place about three to four weeks after the requesting party served his or her motion (and petition for modification).
Often the hearing results in the court appointing a Guardian ad Litem, or GAL. A GAL investigates the parties’ parenting and makes custody-related recommendations to the court.
Assuming the court appoints a GAL in your case, you should write him or her a letter or email describing your parenting-related concerns. You should also provide the GAL copies of the documents filed with the court up to that point in the case and any additional documents you file from that point forward.
Always tells the truth when dealing with a GAL. Clean your house and have your child(ren) play an educational activity rather than watch the TV before and during any GAL visits. It can also be a good idea to draft and rehearse talking points about your advantages as a parent.
B. Default. The responding party usually has 20 days to respond to the petition by submitting a Response to Petition. Failing to respond on time can lead to a default. Default, in turn, means the responding party cannot participate in the case. Our firm has a separate article on default.
C. Parenting Class. Shortly after the time of petition, local rules might require the parties to take a class, such as 4 Kids’ Sake. Speak with a local family law facilitator about whether you need to take a class and which one. Sign up as soon as the case begins but not before. You might not receive credit for taking the class if you do it too soon.
Make a copy of the certificate of attendance, and file it with the court clerk’s office for the county of your case. Make sure to file this within roughly two months of the petition. Otherwise the court might hold it against you at hearings or trial.
It is also important to follow the advice in the parenting class. The advice may be crucial to your children’s mental health, and the court sometimes punishes parents for saying certain things around the children.
7. Remaining Steps. The remaining steps are the same as in a divorce, which acts as a template for most other family law matters. Click here to skip to the appropriate section of our article on getting divorced.
In summary of the remaining steps, the parties can 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 agreed orders that complete 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.
That’s it! Hopefully this was helpful. Our firm believes in making quality information available for free online. For more, click the resources tab in the upper right corner. From all of us at Genesis, we wish you the best with your family law matter!
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