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Modification of Parenting Time and Legal Decision Making

Dad dropping off child at school

How to Change Your Parenting Time

Meet Sally. Sally is a mom of three children, ages 2, 7, and 10. Sally and her ex-husband, Bob, were divorced one year ago. Sally and Bob agreed to joint legal decision-making and equal parenting time at the time of their divorce. For the first month, things were going very well.

By the second month, a number of issues developed. Bob began drinking excessively. He would drink and drive with the children in the car. He also got two DUIs. Sally has become extremely worried about her children’s safety when they are with Bob. She would like Bob to get some help, but meanwhile, she wants to reduce the time the children spend with him. What can she do?

When situations change

Incidents like the one above happen often. In fact, it is quite common for a parent to eventually want to change their parenting plan or legal decision-making order for one reason or another. However, it is not all that simple to do. A number of requirements must be met. Further, it will open a door to an entire new legal battle that could last as long as a year or even longer.

Modifications of parenting time and legal decision-making are allowed, pursuant to Arizona Revised Statute § 25-411. This statute also sets up the requirements that one must follow before they can ask the court to make the modification. The most important factor is timing.

You CANNOT modify legal decision-making or parenting time earlier than one year since the previous order was put into place (whether by court order or agreement). If you attempt to modify before the one-year mark, there is almost a guarantee that the court will automatically dismiss your case. The opposing party may also ask that the case be dismissed.

Finding the exceptions

Now what if you were in Sally’s position above, plus you found out Bob has been abusing the children as well? Would you have to wait one year to modify then? There is an exception to the one-year rule. If the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health, then you may modify prior to the one-year mark. Further, if there is evidence of domestic violence, spousal abuse or child abuse, a person may modify the joint legal decision-making order at any time. Lastly, if you have a joint legal decision-making arrangement and the other party is not complying, you can file for a modification of only legal decision-making after six months of the current order being entered.

Petition To Modify

What if your ex files a Petition to Modify within the one-year time frame, but does not meet the exceptions? You will want to file what is called a Motion to Dismiss. Do not file a response to his or her petition. If you do, you have essentially waived your right to ask for the petition to be dismissed. You must file the motion to dismiss before you file anything else.

Within your motion to dismiss, you must request that the court dismiss the petition under Rule 91(D) of the Arizona Rules of Family Law Procedure and A.R.S. § 25-411(A). This rule and statute prohibit filing for a modification within the one-year mark, unless it meets the above exceptions. In your motion to dismiss, you will want to be very specific. You need to include the following:

  1. The above rule and statute and what each of them state.
  2. When the current parenting time and/or legal decision-making order was entered.
  3. That the current order was entered less than one year ago.
  4. That the party does not meet any of the exceptions of A.R.S. § 25-411(A).
  5. The child’s present environment does not seriously endanger the child’s physical, mental, moral, or emotional health.
  6. It has not been 6 months since the legal decision-making order was put in place (only if applicable).
  7. You are complying with the joint legal decision-making arrangement (only if applicable).

Once you draft your Motion to Dismiss, you should file it with the court under the same case number. The opposing party will have 10 days to respond to it. This means they can file a response where they disagree with what you have to say. They may argue that the child’s present environment does seriously endanger the child. If they file a response, you can file one last reply within 5 days of receiving their response. The judge will usually make a ruling shortly thereafter.

Best Timing

Now what if the timing requirements have been met? Say it has been well over a year since the current order was put in place. Does this mean you automatically get to modify the parenting plan and/or legal decision-making arrangement? Unfortunately, no. You are not completely in the clear yet.

In order for the court to modify parenting time or legal decision-making, the court must find that there is a significant and continuing change that materially affects the child. Pridgeon, 134 Ariz. 177, 179 (1982) (citing Black v. Black, 114 Ariz. 282, 283 (1977). If the court finds that there has not been a change in circumstances, then the court does not need to consider whether a modification is necessary.
This means that you cannot just go and file for a modification because it has been a year and you want a change. Something has to have occurred during the time period between when the current order was entered and the present time. This requirement is so important that you could spend thousands of dollars on attorney’s fees and still have your case dismissed at the final trial if the judge finds that there has not been a significant and continuing change. Make sure your attorney or yourself are not filing for a modification “just because.”

Further, when you are at your final trial, you need to make sure you present evidence that shows that significant and continuing change. Take Sally’s case for example. She should not be bringing up DUIs that Bob received 10 years ago. She should also not be bringing up issues that they had between each other prior to the divorce. She would need to discuss what has changed since the divorce and current parenting plan was put into place. This might be recent DUIs, acts of domestic violence, withholding the children, etc. Make sure the complaints are not the same ones you addressed when your current parenting plan was put into place. Also, make sure the complaints are actually significant. If you are complaining about the opposing party just being a jerk on occasion, this will not suffice for a modification.

If you believe you have met the requirements to file for a modification, and feel that there has been a significant and continuing change, you will need to file a Petition to Modify to get the process started. Here are some Q’s and A’s that should help simplify the process for you.

  1. What is the first step in getting a modification of parenting time and legal decision-making?

You will want to draft a Petition to Modify Parenting Time, Legal Decision-Making, and Child Support.  

  1. Where can I get a Petition to fill out?

You have a couple of options. You can obtain one from the Maricopa County Superior Court website. Keep in mind that these forms are fairly standard, and may not have the amount of space you need. They are a good start though if you do not have the funds to hire an attorney. Another option is to draft one yourself. This is not recommended, as you might miss important aspects of the Petition. The other option is to hire an attorney to draft the Petition. This is likely the best route, as an attorney will know what needs to be in the Petition.

  1. After I have completed the Petition, what do I do?

You will need to file the Petition with the clerk at the courthouse. Make sure that you have completely filled out the Petition, signed and notarized it, and made two copies of the original before you file it. Make sure you have any of the required accompanying documents. Also, you will have to pay the court a filing fee. The clerk will give you the correct fee amount.

  1. What if I cannot afford to pay the filing fee?

If you cannot afford to pay the fee, you can ask the clerk for a fee waiver or deferral. The clerk may ask some questions regarding your income, and may request proof of your income such as pay stubs and/or tax returns.  

  1. My Petition has been filed, now what?

You must serve the Petition to the opposing party. This means you will need to hire a private process server to take the documents to the opposing party’s house or workplace to serve him or her. If you cannot afford a private process server you can request that the sheriff serve the documents. The other option is to ask the opposing party if he or she will accept service. You can obtain an “acceptance of service” form on the Maricopa County Superior Court website or through your attorney. This form needs to be signed and notarized by the opposing party and returned to you to file with the court. Additionally, if you have the party formally served, you must file the proof of service with the court.

  1. I have served the opposing party. Do I wait for the court to do anything?

The opposing party has 20 days to respond to your Petition. Once he or she responds, the court may schedule an informal hearing with the court, known as a return hearing.

  1. What happens at a return hearing?

A return hearing is usually a quick informal hearing in front of the judge. It usually lasts no more than 15 minutes. It provides the judge with a quick update of what the issues are and what direction the case should go. The judge may send you and the opposing party to a parenting conference. The judge could also get a third party involved, such as a court-appointed advisor or best interests attorney, to investigate any high conflict issues or abuse.

  1. What happens if the opposing party never responds?

If a response is never filed, you can apply for a default. This means that you are requesting from the court to make everything in your Petition a final court order due to the opposing side’s failure to appear. This is why it is important to include what you want in your Petition. If you do not, and the opposing side does not respond, you may end up walking away with less than what you wanted.

  1. Will I have to go to a formal evidentiary hearing?

It depends. If you and the opposing party are able to reach an agreement on all of the issues, you can submit a modified parenting plan to the court and avoid having to go to an evidentiary hearing. If you are not able to reach an agreement on all of the issues, you will have to go to the hearing. This is where you will present evidence to the judge, possibly use witnesses, and testify.  

  1. If I go to an evidentiary hearing, when will I find out what the results are?

Usually, the judge will make his or her ruling within a couple of weeks. However, the judge is allowed to have up to 60 days to make the ruling. It depends on how complicated the issues in your case were, as well as how busy the judge’s calendar is at that time.

  1. Will the judge rule in my favor and modify parenting time and joint legal decision-making?

Maybe. This will depend on how good of a case you have. Modifications are not the easiest types of cases to be successful at. It is really important that you have good evidence to support why you need a modification. As discussed before, minor complaints about the other parent likely will not result in a modification. Also, keep in mind that the opposing party can ask for a modification. This means that he or she could make allegations about you and request that your time be reduced.

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