Friday, April 16, 2010

Court May Modify a Parenting Plan Based on Facts Previously Before the Court in an Unsuccessful Petition to Modify.

Division III recently held that a court may modify a parenting plan based on facts previously before the court in unsuccessful petition to modify the parenting, or on facts that arose prior to entry of an agreed parenting plan.
In Marriage of Zigler and Sidwell, Dkt # 27378-4 (Div. III, 3/4/2010), the parties entered two modifications of the parenting plan by agreement. After each agreed modification, the father then attempted to modify the order again, via court action. The first time he was unsuccessful. The second time he was successful.
The timing of each parenting plan dispute was as follows:
• 2002: final parenting plan;
• April, 2004: agreed modified parenting plan;
• December, 2004: father filed petition to modify. Court denies petition;
• March, 2006: agreed modified parenting plan; and
• April, 2006: father files petition to modify. Court grants petition.

By law, parties to a parenting plan may modify it by agreement. Absent agreement, the moving party must demonstrate a substantial change of circumstances in the non-moving party or the child, based on facts unknown to the court at the time of entry of the existing parenting plan.
In addition, the moving party must demonstrate that the child’s current living situation is detrimental to his health and that the harm likely to be caused by change is outweighed by the advantage of change.
On appeal, the mother argued that evidence regarding the substantial change of circumstances the father used to support his unsuccessful petition to modify in 2004 was inadmissible because the commissioner had already considered it and denied the petition anyway.

The court of appeals disagreed, holding that all evidence after entry of the original parenting plan in 2002 was admissible.

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