Thursday, April 28, 2011

We agreed to a new Parenting Plan; should we go back to Court?

It is typical for parents to make changes to their parenting plan and visitation schedules as their children age. Indeed, we often refer clients to two resources which suggest that parenting plans need to change as children age to accommodate their different developmental requirements: Planning for Shared Parenting: A Guide for Parents Living Apart and the Model Parenting Plans.

In addition, we usually include the following paragraph or something similar in our agreements:

Nothing contained in this Agreement shall preclude both parents from jointly and voluntarily modifying the above-described co-parenting schedule or from reaching agreements for the co-parenting of the children by the parents that are not in conformity with the foregoing co-parenting schedule provided that such modifications and agreements be reduced to a writing in advance and be signed and/or otherwise (e-mail) confirmed and/or otherwise ratified by both parties. Either parent may request a modification of the foregoing parenting schedule from the other parent. Any modification of the parenting schedule shall be requested reasonably in advance, except in emergency situations. The parties shall take into consideration the best interests of the children when discussing exceptions to the parenting schedule.

This is intended to provide parents with encouragement to be flexible when life requires it or children's ages require new arrangements.

But, if you enter into such a modification, should you go back to court to have it approved by the court?

According to the Massachusetts Appeals Court in an unpublished decision, if you don't ratify the agreement in writing and have it approved by the court it may not be enforceable. In Benoit v. Benoit the court found that the oral agreement between parents to make changes to the parenting schedule was not sufficient evidence to show a material and significant change in circumstances. The court therefore refused to enter the oral agreement as a new order. If the parties had made the agreement in writing and entered it as an Agreement for Modification, then the Father could have enforced it in court. But since they didn't, the court was not willing on the evidence of an oral agreement alone, to enforce the changes.

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