Modification of Parenting Time or Legal Decision Making
A court ordered modification of parenting time must follow some procedural steps. You must know that this is governed by ARS 25-411 which reads that there must first be a change in circumstances to change parenting time or legal decision making and it must be in the child’s best interests.
Parenting Time Modifications Change Existing Parenting Time Plans
Parents initial parenting plan may need to change over the years. The best way to make these changes is by agreement of the parents. Otherwise you must go to court, meet the standards for filing, attempt mediation first, and then prove a material change of circumstances and show evidence why a modification is in the child’s best interests. For instance, when children are toddlers, a 2-2-3. schedule might work so both parents have frequent contact but as kids get older a week on and week off schedule might make more sense for them. Often there are other factors such as a parent moving, a child’s school changes, a parent’s therapy, drug use, military deployment, mental health condition changes and other reasons. These cases are very fact dependent and each case is very different.
But each case must meet two burdens: assert a change of circumstances after one year from prior order (unless there is an emergency) and an analysis of the children’s best interests. ARS 25-403.
TIME PERIODS TO MODIFY PARENTING TIME OR LEGAL DECISION MAKING
How to Start A Modification Of Parenting Time or Legal Decision Making
First, read your prior parenting time order so you abide by the mediation provision before you go to court. Most plans require the parents to attempt mediation first or else be subject to attorney fees. Emergencies need not follow the mediation provision.
Second, file the petition for relief in the same court you received ed your previous orders from. You should include specific facts supporting the change of circumstances and the best interests. The court may set a status conference or a resolution management conference before setting a trial date.
Third, at trial, you must follow all rules that attorneys must follow which includes a pre-trial statement, exhibits, witnesses and affidavits.
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Requirements to File Petition to Modify Parenting Time
Requirement 1
It must be at least one year (or longer) since the current Parenting Order was entered into (see exceptions below); and
Requirement 2
You must prove to the Court there has been a material change in circumstances directly affecting the welfare of the child. (This is where you tell the Court why you are asking for a change to the current parenting time order. What has changed since the last order was entered until now?)
The Court
Once the Court determines a material change in circumstances has occurred, the Court then looks at the Best Interest Factors of your child(ren) under A.R.S. 25-403.
Frequently Asked Questions
My husband constantly violates the parenting time order. Do I have to wait a year?
Short answer is yes, unless there is an emergency. There are other remedies however, mediation or Filing a Petition for Contempt alleging a violation of court orders.
My wife is very ill and can no longer care for the children. Do I need to go to court and modify parenting time?
You do not have to go to court but you should consider drafting an agreement that could be filed with the court and become a court order if needed. If she does not see the kids and will not sign an agreement, it might be best to get help from the court.
Can you modify parenting time but not legal decision making?
Yes and vice versa
My former husband moved 142 miles away from the kids. He was allowed to have parenting time every Tuesday after school until 8 pm and every other weekend. Should I modify parenting time?
If the Father drives to see the kids every Tuesday in their hometown, you do not need to modify. As for the weekend time, you might want to attempt mediation so the kids see him longer times but less times to shorten their time in the car. It would most likely meet the standards to modify parenting time if you decided to file.
My former wife is back in drug treatment. Should we modify parenting time and legal decision making?
Yes, you could consider this. It will depend on her condition, what she is able to do, how safe she is with the children, whether she can communicate and co-parent with you. It would most likely meet the requirements to modify.
My first attorney forgot to tell the court about my husband’s drug use and DUI and alcohol treatment. Can I modify now?
Depends. Courts will not usually agree to relitigate a case just based on evidence that was available at the time of the first trial but was not presented. It could be part of the history if this behavior continued after the first order You would also have grounds to modify if there was an emergency for the children’s health and safety. As you can see, it is imperative to retain an experienced attorney the first time around.
My former husband is moving across country. Now what?
You will want to modify parenting time into a long distance parenting plan. This can be done my mediation. There is most likely no reason to change legal decision making. A long distance parenting plan provides longer visits and visits less often. Travel plans must be in the child’s best interests. It must also be a safe plan for them.
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