Tuesday, April 30, 2013

What is the Standard for Amending Parenting Plans?

Most parenting plans drafted by experienced practitioners will include language along the following lines:
"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 language is intended to encourage parents to discuss necessary adjustments to their parenting plan to accommodate things that come up in every day life which can make a strict schedule impractical.

But what happens when a more permanent change is required?  If the parents can't reach an agreement as to whether a change is in the best interest of the children, then the court can decide whether a change is appropriate upon the filing of a Complaint for Modification.

Use our Parenting Calendar Worksheet
to help visualize proposed schedules
What standard does the court use in reviewing proposed changes to a Parenting Plan?

In a recent Massachusetts Appeals Court case, Diamond v. Diamond 82 Mass. App. Ct. 1124 (2012), the Appeals Court upheld a trial court judge's modification of a parenting plan, which added one additional overnight visit with the children in every two week period.

If it ain't broke don't fix it: The mother, who appealed, the decision, argued that the parenting plan was working, and that the court should, therefore, not make any changes to it.

Let's do the best we can: The court disagreed, finding that as long as there was a material change in circumstance that allowed for the court to hear a modification request, the trial court could make a change that will further the best interest of the children.

This is an important distinction between maintaining the status quo, if it is working, and making changes which the court is convinced will be better for the children.  If the changes haven't been tested, then the court can't know for sure, but the Appeals Court in Diamond confirmed that the trial court's discretion allows for such a change.

As a practical tip, this ability of the court to make untested changes at a Modification trial, might be a good argument for temporary orders in a non-emergency situation.  At least if a new schedule is tested in temporary orders we would that have information about whether it really was better for the children in practice.  This type of negotiated trial and error is also often encouraged in mediation and collaborative practice, both of which are options that probably could have saved these parties a lot of money.

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