Child Custody Modification
Authored By: Northwest Justice Project
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- What is a modification?
- What can I ask for in a modification case?
- What is the difference between a "major" and "minor" modification?
- How much does a modification cost?
- What if I cannot afford the filing fee?
- Will the court grant a request for a modification automatically?
- How do I prove the need for a major modification?
- How do I prove the need for a minor modification?
- I do not want to change the order, but I am having other problems with the other parent/custodian. What can I do?
- What if I do not have a final Parenting Plan for my child?
- Should I file a modification if I want to move with my children?
- Where can I find the law about modification?
- What if I need legal help?
The word "modification" means "a change." A custody modification is a court action that you can file when you want to change a final court order that sets out where your child lives and with whom s/he visits. This order might be called a Custody Decree, a Residential Schedule, or a Parenting Plan. This publication will call all these orders "Parenting Plans." The Parenting Plan may be between you and your ex-spouse, you and an ex-boyfriend or girlfriend, or between you and someone else who has been taking care of the child, such as another relative.
- This publication uses the word "custodian" to describe other people besides parents who may have a right to time with a child.
You ask the court to sign a new Parenting Plan. The new Parenting Plan may be very different than the current order, or just a little different. Examples: if you do not have custody now, you can ask the court to give you custody. Or, if you do have custody and are worried about the other parent or custodian's time with the child, you can ask the court to change that. You can also ask the court to change child support, if the change to the Parenting Plan is major.
A major modification is a court action to ask the court to make a big change to your current Parenting Plan. A minor modification is a court action to ask the court to make only small changes to your Parenting Plan.
Examples: asking the court to change custody is a major modification. Asking the court to change the dates of holiday visits is a minor modification.
If you file your modification in the same county that entered your parenting plan, the court will charge you a $30 - $56 filing fee. If you file your modification case in a county other than where your current decree was entered, or if you file it under a different case number, the filing fee will be between $200 and $205.
You will also need money to cover copying costs and possible fees for serving papers on the other parties. If you hire a lawyer, you will have to pay attorney's fees and costs. If you cannot afford a lawyer and need to start a modification action on your own, download the packets you need from www.washingtonlawhelp.org. Or call CLEAR at 1-888-201-1014 and ask to have a copy mailed to you.
If you are low-income, you can try to get the court to waive (cancel) the filing fee. Our publication called New Court Rule: Filing Fee Waiver has more information. Our packet called Filing a Motion for Fee Waiver has forms and instructions.
No. First, the person asking for the change will have to prove to the court that there is a good reason to make the change. Before the court will allow a change or even a trial, the court will hold a hearing called an "Adequate Cause" or "Threshold" hearing. If the person asking for the change cannot prove there is a good reason at that hearing, the court will dismiss the modification case.
If the parent asking for the change proves that there is a good reason at the first "Adequate Cause" hearing, then the court will set a date for a trial. If the other parent or custodian does not agree to the change, then there will be a trial where a judge will decide whether or not to allow the modification.
At the trial, the parent who wants the change will have to prove that there is been a big change in the life of the child or the other parent or custodian since the current Parenting Plan was entered. The legal term for this big change is "substantial change of circumstances." The substantial change of circumstances must be one of the following:
The parents and any custodian agree to the modification;
The parent or custodian with custody under the current Parenting Plan has let the child live with the other parent for a substantial period of time;
The place where the child is supposed to live under the current Parenting Plan is not safe for the child physically, mentally, or emotionally, and it would be more harmful to leave the child where s/he is than to move him/her to the other parent's home;
The other parent or custodian has been held in contempt of court at least twice in three years for not following the Parenting Plan, or the parent was criminally convicted of custodial interference in the first or second degree.
It is not enough that a parent wanting a change thinks that his/her life has improved so much that the child should now live with him/her.
- PARENTS IN THE MILITARY: If a parent involved in a modification action is in the military, and has been deployed, activated, or mobilized, special rules apply. See a family law attorney for advice about your situation.
The court may order a minor modification of the Parenting Plan if:
- there is been a substantial change of circumstances in either parent's life or the child's life,
- the modification is in the child's best interests.
An example of a reason for a minor modification is a change in either parent's work schedule. Another reason for a minor modification might be that one parent wants to take the child on a longer vacation than allowed under the current Parenting Plan, because the child is older now and can spend a longer time away from the other parent.
A minor modification may not change custody of the child unless one parent or custodian is moving with the child.
I do not want to change the order, but I am having other problems with the other parent/custodian. What can I do?
If you are happy with the current order, but the other parent has not been following it, or if you need the terms of the current order clarified, file for contempt or clarification, not for modification. If you just want to change the amount of child support a parent pays, file a separate action called "Modification of Child Support." For more information, ask for the Changing Your Child Support Court Order publication from CLEAR by calling 1-888-201-1014. Or download it from www.washingtonlawhelp.org.
If a court has never signed a final Parenting Plan, you need to start a different kind of action to get one. For more information, ask for the Parenting Plans (court orders about child custody) publication from CLEAR by calling 1-888-201-1014. Or download it from www.washingtonlawhelp.org.
The process is different. For more information, ask for the Questions and Answers about Washington's Relocation Law publication from CLEAR by calling 1-888-201-1014. Or download it from www.washingtonlawhelp.org.
You can find some law about modifying a Parenting Plan at most public libraries or online at http://apps.leg.wa.gov/RCW/default.aspx. Some of the law is set out in the Revised Code of Washington (RCW) 26.09.260 and other parts of RCW 26.09. Some law about modifications comes from cases decided by courts. Ask your public library's reference section about how to find court cases. If you do not have enough money to hire a lawyer for your whole case, some lawyers might be able to help you with some parts of your case for less pay. Example: You may hire a lawyer to research an issue for you, or to check over legal papers you have filled out.
Apply online with CLEAR*Online - http://nwjustice.org/get-legal-help
- Call CLEAR at 1-888-201-1014
CLEAR is Washington's toll-free, centralized intake, advice and referral service for low-income people seeking free legal assistance with civil legal problems.
- Outside King County: Call 1-888-201-1014 weekdays from 9:10 a.m. until 12:25 p.m. CLEAR works with a language line to provide interpreters as needed at no cost to callers. If you are deaf or hard of hearing, please call 1-888-201-1014 using your preferred TTY or Video relay service.
- King County: Call 211 for information and referral to an appropriate legal services provider Monday through Friday from 8:00 am – 6:00 pm. You may also call (206) 461-3200, or the toll-free number, which may be useful when calling from a pay phone, 1-877-211-WASH (9274). 211 works with a language line to provide interpreters as needed at no cost to callers. Deaf and hearing-impaired callers can call 1-800-833-6384 or 711 to be connected to a relay operator at no cost, who will then connect them with 211. Information on legal service providers in King County may also be accessed through 211's website at www.resourcehouse.com/win211/.
Persons 60 and Over: Persons 60 or over may call CLEAR*Sr at 1-888-387-7111, regardless of income.
This publication provides general information concerning your rights and
responsibilities. It is not intended as a substitute for specific legal advice.
This information is current as of the date of its printing, August 2012.
© 2012 Northwest Justice Project — 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.)