How Do I Modify Or Change The Amount Of Time I Get With My Children?
According to Kansas Statute K.S.A. 23-3221(a), the court may modify an order granting or denying parenting time whenever the modification would serve the best interests of the child.
The first steps involved in modifying a parenting plan would be to file a Motion to Modify in the jurisdiction where the original orders are entered. In that Motion, your attorney should include all of the reasons that warrant the Motion to Modify. Although the Kansas statute does not specify the need for a material change of circumstance to modify a parenting plan, in practice, the court will not likely find a modification would serve the best interests of the child unless there has been some material change of circumstance. K.S.A. 23-3218 goes on to clarify that the court may change or modify any prior order of custody, residency, visitation, and parenting time when a material change of circumstances is shown.
Before I get into explaining more about what a “material change in circumstance” may or may not be, it is important to understand that there is one key exception to the rule that a material change in circumstance has to be shown to change a parenting plan and that it is a situation where parents of child (or children) voluntarily agree to change a plan.
That is, if both parents talk and confer, and agree that they need to change their visitation schedule, or change any other part of their parenting plan, they are free to make that change between themselves if they can. This is because in Kansas, it is presumed that any time parents themselves can reach an agreement regarding their children, that agreement is in the child’s best interest.
If the parties do not make an agreement to change the partnering plan, the question that must be answered is: What constitutes a material change of circumstance for custody modification purposes? Generally speaking, a material change in circumstances is shown whenever there is a situational change in the child’s life or surroundings, or events occur which make it reasonable to inquire about whether there should be a reexamination of the child’s living arrangement. While this may sound somewhat broad, that is because it is. That is, Courts have intentionally shied away from trying to place any type of formal definition on what a “material change” may or may not be. This because life is dynamic and changing, and different for everyone. Thus what may be a “material change” in one families life may not be deemed a “material change” in another families life. There are some situations that will almost certainly constitute material change in circumstance Some of those situations include the following:
- One parenting wishing to relocate to a different state or an area outside convenient travel;
- One parent becoming unfit to care for the child;
- One parent becoming more able to care for the child;
- A significant change in a parent’s work schedule;
- The changing age of the child; or
- One parent’s failure or refusal to correct a significant problem in a child’s life.
While this is not an exhaustive list, each of the above may allow you the opportunity to petition the court for a change to your current parenting plan. If you file the Motion to Modify, it is your burden to establish the material change in circumstances and you must be ready to produce evidence showing the same. In the Motion, your attorney should lay out all the allegations that you have concerning a change in circumstance. You and your attorney will need to discuss the nature of the alleged material change in circumstance. It is important to remember that the change must be substantial and continuing in such a way that your original decree becomes unreasonable.
In light of this being the way the law operates in Kansas, what constitutes sufficient grounds for modification of a previous custody order is largely in the discretion of the trial judge, and the view of that judge as to what would best serve the interest of the minor child (or children) before it. As one Judge has eloquently stated:
“We have many times held that the paramount concern of the court in a child custody case is the welfare of the children. Whether a child custody order will be changed or modified rests in the sound judicial discretion of the trial court. Its judgment will not be disturbed unless the record clearly shows that discretion to have been abused.”
All of that said, the Kansas Supreme Court has attempted to provide what guidance it can to practitioners and the Courts alike. Specifically, the Kansas Supreme Court has found that a material change in circumstances “is one that must be of a substantial and continuing nature to make the terms of the initial decree [or parenting plan] unreasonable.”
Notwithstanding that definition, situations that constitute a material change in circumstances continue to elude precise and concise definition. Rather, as one Kanas Court has put it, “it involves an alteration and passage from one condition to another and requires consideration of a variety of factors and circumstances.” It is therefore a sum of the parts type analysis. Or as one court has put it: “In other words, we know it when we see it.”
After your attorney files the Motion to Modify with the court, he or she will request a court date to get the matter in front of a judge. Pending the court hearing, there will likely be some discovery conducted where each side exchanges documents that are relevant to the request for a modification. In some cases, upon the filing of the motion and conversation with the other party, an agreement can be reached and the parties can mutually modify the parenting plan to benefit their child. If this occurs, your attorney can file the amended joint parenting plan and with the court’s approval (the court will still need to insure the amended plan is in the child’s best interests), the amended plan will be entered as a formal order and will, from then on, be the controlling parenting plan.
If you think there has been a material change in circumstance regarding your particular situation, please give one of the attorneys in our office a call and he or she will be able to help you determine if you have an opportunity to modify your parenting plan. The ability to modify a parenting plan is case specific and you will need to discuss your case with an attorney to determine the options you have available to you if you no longer feel the parenting plan you have in place is in the best interest of your child.
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