How to Modify Parenting Time After a Divorce
By Elizabeth Rayne, J.D.
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The original parenting time order following a divorce may not be practical after a period of time due to a change of circumstances. Parenting time, also known as visitation, is ordered and modified based on the laws of the state. Often, parents can agree on changing the parenting time schedule, but when they cannot, it will be up to the court to determine whether or not it would be in the best interests of the child to modify the arrangement.
Parents will often agree to change the visitation arrangement or schedule. For example, if you only need a minor scheduling change because of a new work schedule, your ex-spouse may agree to make adjustments to the parenting time schedule. However, you must file a consent order, sometimes referred to as a stipulation, which states that you both agree to the change in parenting time, with the same court that awarded the original order. Failing to file with the court may create complications down the line as your ex-spouse could claim that you are not following the original order, despite later agreements.
Motion for Modification
If your ex-spouse does not agree to change the terms of the parenting time order, you may petition the court for modification. Your state or county court's website might have particular forms you may use to request modification. If not, you can visit the courthouse or try an online legal document provider. On the petition, you will include how and why you want parenting time to be changed. The petition should be filed with the same court that originally awarded custody and parenting time. You generally must have a copy of the paperwork served on your ex-spouse. The court may schedule a hearing to allow each parent to present their side of the story.
In some states, after a parent has filed a petition for modification, the court will send the parents to mediation before the hearing. During mediation, the parents will meet with a neutral third party who will attempt to help the parents reach a decision on their own terms, instead of the judge making the decision for them. If you reach an agreement at mediation, the mediator may submit the agreement to the judge for him to sign. If you cannot agree, you will proceed to a hearing before the court.
Burden of Proof
Generally, the parent who files the motion to modify parenting time has the burden of proving that the change is necessary. Depending on the laws of the state, courts will usually only modify the order if you have evidence that circumstances have substantially changed since the time of the original order and it would be in the child's best interest to change the arrangement. For example, a court may change the visitation schedule if one parent moves out of state or the noncustodial parent starts abusing alcohol or drugs. In some states, courts may modify the schedule if one parent has unreasonably refused scheduled visitations.
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."