Parenting Plan Violations and Modifications

Raising children is a challenging but rewarding proposition.  Sharing a home with your co-parent is an excellent want to maintain stability for your Gavelchildren, but that is not always possible.  Following a divorce or separation, the court will enter an order providing for custody and visitation for the children you share with your spouse or partner.  Even with the best of intentions, a parenting plan that works well at the outset may not end up working years down the road.  As the child grows older, it may be necessary to modify the parenting plan to reflect the child’s changing needs.  Modification can be sought as a result of a variety of events, but violation of the parenting plan is one to be aware of when considering whether a modification is necessary.

When one party wishes to modify the parenting plan, he or she must file a request with the court alleging there has been a change of circumstances since entry of the last order.  Minnesota statute 518.18 specifically addresses the existence of violations of parenting plan by stating the court cannot modify a parenting plan order “unless it finds, upon the basis of facts, including unwarranted denial of, or interference with, a duly established parenting time schedule, that have arisen since the prior order” that a change has occurred since the entry of the previous parenting order.  In other words, Minnesota statute specifically directs courts to take interference with a parenting plan into account when deciding if there has been a change sufficient to warrant modification of the plan.

After a court determines there has been a change of circumstances sufficient to change the plan, the court then turns to whether such a modification is in the child’s best interest.  Like when the original parenting plan was established, the court will base the new parenting plan on a best interest determination.  There is a list of best interest factors contained in the Minnesota statutes which the court will weigh when deciding whether to or in what way to change the current parenting plan.  One of the factors is “the willingness and ability of the parents to cooperate in the rearing of the child”.  If one parent has consistently refused to abide by the parenting plan, the court could determine that signaled that the parent is unwilling and unable to cooperate with the other parent.

There are many ways that a parent could choose to intentionally disobey a parenting plan order, but one of the most common to arise in this context is when one parent consistently refuses to exchange the child on time or at all.  For example, if a parent persistently refuses to drop off the child at the appointed time Friday afternoon, instead waiting until Saturday morning, the court quite possibly could change the parenting plan because of that parent’s refusal to encourage and maximize time with the other parent.  While the first instinct of the parent losing out on time may be to request that the other parent be held in contempt, changing the parenting plan to help curb intransigence could be a better long-term solution.

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