What To Do When You Need To Modify A Parenting Plan
After your divorce has been finalized, your parenting plan is an enforceable court order. However, circumstances may arise that create a need to revise or modify the original parenting plan. Many different circumstances can lead to modification, such as:
- A parent’s relocation due to employment
- One or both parents’ job schedules change
- Changes in a parent’s or child’s physical or mental health
- Abuse or neglect
A parent seeking to modify a parenting plan must first request mediation. This can be done on your own or through your attorney. Normally, the parties or their counsel will pick a mutually agreeable mediator, date and time and will share the cost of the mediator’s fee.
If a party refuses to respond to the request or attend mediation or the mediation fails to result in a settlement, then a petition to modify can be filed with the court asking for relief. Once the other parent is served, he or she has 30 days to respond by filing an answer. If mediation has not already occurred, the trial court will usually require it before setting a hearing date.
When a petition to change or modify custody is filed, the parent asking for the modification has the burden of showing the trial court that:
A “material change in circumstances” has occurred. If a material change is shown, that parent must then prove that a change of custody or change in the residential parenting schedule is in the child’s best interest. The following factors indicate that a material change in circumstances has occurred: The change occurred after the parenting plan order was entered by the court; at the time of the order’s entry, this change was not “reasonably anticipated;” and the change “affects the child’s well-being in a meaningful way.”
A material change of circumstance for purposes of modification of a residential parenting schedule (as opposed to a change of the primary residential parent) may include significant changes in the child’s needs as time progresses, which may include age-related variations; significant differences in a parent’s living or working situation that significantly impact parenting; failure to follow the provisions of the parenting plan; or other circumstances making a change in the residential parenting time in the child’s best interests. Tenn. Code Ann. § 36-6-101(a)(2)(c).
When Substantial Change Occurs
If such a change is shown, the court must turn to a best interests determination that includes a review of multiple factors, located at T.C.A. §36-6-101(a)(1)-(10). These factors include the emotional ties between child and parent; the parents’ ability to provide for care and educational needs; continuity; stability of the family unit; parents’ mental and physical health; the home, school and community record of the child; the reasonable preference of a child who is at least 12 years old; evidence of physical or emotional abuse; character and behavior of third parties who interact with the child; and each parent’s parenting history.
When Parental Relocations Occur
If a parent needs to relocate outside the state or more than 100 miles away, then a slightly different procedure must be followed. Nearly all parenting plans contain a requirement under T.C.A. § 36-6-108 that a parent wishing to move send the other parent a notice containing:
A statement of intent to move, the location of the proposed new residence, the reasons for the relocation and a statement that the other parent may file a petition in opposition to the move within 30 days of receipt of the notice.
This notice must be sent, via registered or certified mail, 60 days prior to the move. If the other parent files an objection, then mediation is scheduled. If mediation fails to result in a settlement, then a hearing is held.
What Happens At A Hearing?
At that hearing, the court will look to T.C.A. §36-6-108(a) & (d). Those provisions state that the primary parent will be allowed to relocate with the child unless the court finds that:
- The relocation does not have a reasonable purpose.
- The relocation would pose a specific threat of harm that outweighs the threat of harm caused by a change of custody.
- The motive for the relocation is vindictive.
If any of these are found, then the court must undergo a best interests review under T.C.A. §36-6-108(e) to determine whether the relocation will be allowed or a change of custody will be ordered.
Parenting Plans In Juvenile Court
If your parenting plan was completed in juvenile court instead of divorce court, then the same standard of material change of circumstances applies. Most juvenile courts will also require or favor mediation prior to a hearing being held.
Contact Our Firm
If you believe your change in circumstances is enough to warrant the change of a co-parenting plan or a support order, talk to the lawyers at our firm. We have considerable experience handling a variety of family law matters, including modification requests. We can help you.
Schedule a free initial consultation online or call 865-566-0125 to set up an appointment at our Knoxville, Tennessee office. We accept credit cards.