As part of any divorce involving children, you must create a parenting plan. This plan determines custody, schedules for visitation, and details about child support, and medical bills to name a few. This parenting plan becomes a court order.
If you wish to make a change to this court order, you must prove there is a “material change in circumstances. This means an unforeseen life event that is substantial enough to necessitate a change in the parenting plan. Material changes can include relocation for work or to care for a family member, a change in job that changes your working hours, a change in housing, or an illness or disability. These changes are normally beyond your control or as a result of a change in the other parent’s life that is also beyond your control.
If your material change includes relocation to a new area, check with an attorney before you make your move. In Tennessee, for example, you can move up to 50 miles away from the other parent’s home without giving notice pursuant to the Tennessee Relocation statute (Tennessee Code Annotated § 36-6-108) and follow the procedures outlined within that statute. But if you plan to move over 50 miles away, you must gain court permission.
The change must also be unforeseen. A child turning five and starting school is not an unforeseen event – it’s expected that when your child is old enough, he or she will go to kindergarten.
I recently handled a case for a client where a change was needed in the parenting plan for her child. The child’s father remarried, moved, and took on 3 additional children as part of that marriage. There were new issues to address. There was not enough room in the father’s new house, plus the new house was outside of the child’s current school zone. These were big enough changes to warrant a petition to change the parenting plan to best suit the needs of the child.
If you need to change your existing parenting plan, you may wish to go back to the attorney you filed your divorce with if you have a good relationship with that attorney. Some attorneys don’t do any “post-divorce” work like modifying parenting plans, so ask for a referral if that is the case.
To request a change in the parenting plan, you must file your petition to modify including the reasons the current plan will not continue to work. Many people don’t know this, but a new proposed parenting plan must accompany your petition. Don’t leave that out - you must file both the petition and the proposed parenting plan for the court to consider your request. Be sure that you have enough evidence to support your claim, too, so that when you go in front of the judge, you can explain why your current parenting plan is not working.
Your petition to modify the parenting plan is filed and served on the other party with 30 days to file a response. Your attorney will go through the discovery process to gather evidence and send interrogatories to the other party to answer. You may also be required to go through another parenting seminar before your request can be granted.
Most counties will require you and the other party to go through mediation before you are granted a trial date. This allows you to settle the terms of a new parenting plan outside of court with the assistance of a mediator, saving you court costs and attorney fees. Many counties prefer mediation to keep the court docket clear, but some counties will allow the matter to go to trial right away.
If there has been an unforeseen, material change, the court will perform a “best interest analysis,” to determine how the change will affect the child or children. The judge will examine the parenting plan to see if it’s currently being followed and if it is still workable before granting a new parenting plan.
There are a few steps to follow if you wish to petition the court for a change in the parenting plan.It's best to call a trusted legal professional for advice so you can hopefully have your request granted quickly and without any problems.