A little history: We have a 50-50 custody situation with growing problems. Two years ago I motioned for a major modification, she countered with a minor. The commissioner went with the minor. We did one mediation before my ex-wife refused to further mediate after 3 more attempts to do so. We went all the way to trial on her minor to only mediate it outside the courtroom with our attorneys. Just prior to finalizing the parenting plan she was found in contempt for denial of visitation. She has done nothing but play games ever since. She will not reimburse me for shared expenses per the support order. She is violating the vacation clause and now attempting to take 6 weeks of vacation when 3 weeks is all that is allowed. She allows the kids to fall behind on homework... more coming
Asking teachers for homework extensions because homework doesn't get done at mom's. Extensions granted; assignments turned in on my time. She's required to carry insurance for children but after two months of requesting a new insurance card from her I still have not received one. My ex sends receipts for school supplies and demand her portion; when I have a similar education expense she does not reimburse me (the order covers this). She was found in contempt for denial of visitation last year; I have a more to take into court now. The heart of this posting: does any of this even matter? At what point would a court decide a change in custody is in order? Co-parent isn't working. I schedule mediation, she refuses. Does it ever end? What do the courts look for when making the big decision of who the kids should live with? I know courts frown on 50-50 because of all the litigation involved, but the other angle is that courts want children to spend as much time with both parents. So which is it?
I agree with my colleagues' posts: (1) Success on any issue is case specific and fact driven (it cannot be reduced down to percentages or to a guaranteed outcome), and (2) before a petition for a major modification of the parenting plan can proceed the court must first determine whether there is adequate cause to proceed with the petition (a substantial change of circumstance since the entry of the parenting plan sought to be modified. What I will add to my colleagues’ posts is the following:
Major modifications of parenting plans are the most difficult to obtain. The reason is set forth in the statute itself. Section (1) of the modification statute (RCW 26.09.260) states “the court shall not modify a prior custody decree or a parenting plan unless it finds, upon the basis of facts that have arisen since the prior decree or plan or that were unknown to the court at the time of the prior decree or plan, that a substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child.” In Section (2) of the same statute it states: “in applying these standards, the court shall retain the residential schedule, unless . . ..” Therefore, going into any modification action there is a presumption against any changes to a currently in effect parenting plan unless sufficient facts can be established otherwise.
There are certain listed reasons to request a modification. They are found in RCW 26.09.260, Sections (2)-(13), but I will focus on (2) (a)-(d) which provide as follows:
(a) The parents agree to the modification;
(b) The child has been integrated into the family of the petitioner with the consent of the other parent in substantial deviation from the parenting plan;
(c) The child's present environment is detrimental to the child's 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; or
(d) The court has found the nonmoving parent in contempt of court at least twice within three years because the parent failed to comply with the residential time provisions in the court-ordered parenting plan, or the parent has been convicted of custodial interference in the first or second degree under RCW 9A.40.060 or 9A.40.070.
Based on the above and what you have provided in your post, you may want to pursue a contempt action alleging violations of the residential provisions independently or as a precursor to a modification action. Two or more contempt findings by a court against a the same within a three year period where the contemptuous act is based on failure to comply with the residential provisions of the court-ordered parenting plan is a basis to modify. I will note from experience, however, that the courts are more inclined to take seriously a violation of the residential provisions of a parenting plan over other aspects of the parenting plan like decision-making, dispute resolution, or “other” provisions. However, from a technical standpoint a violation of any aspect of the court ordered-parenting plan could warrant a finding of contempt.
To best assist you, an attorney would need to know more about the specifics of the case: whether the prior parenting plan resulted from agreement or a trial, whether there are any parental conduct factors/restrictions listed in the parenting plan, and the types of information that has surfaced between the entry of the current parenting plan and now that might establish that there is adequate cause to modify the existing parenting plan.
Unfortunately, you can't reduce family law decisions to percentages. The standard the court employs in parenting plan modifications is what is in the best interests of the child, and that decision is a subjective decision based upon the evidence and the ability to persuade the judge as to why your position is correct under the law. There is no cookie cutter answer to that question. You may have great evidence, but if you fail to argue the case properly or follow the rules of evidence, it could all for naught. The best way to realize your goal is to hire counsel, but even then , the case is only as good as the evidence you have and can get before the court under the rules of evidence.
Another important aspect with regard to modification of Parenting Plans is the adequate cause hearing. The petitioning party has to show that there has been a substantial change in circumstance. This is where the facts come in. Before proceeding with filing a petition or setting this matter for hearing you are strongly advised to meet with an attorney so that they can help you determine if in fact there will be a finding of adequate cause. If adequate cause is denied then you will be hard pressed at presenting the same issues to the court at a later date.
