Washington Court Finds Procedural Change in Parenting Plan Is Not Improper Modification

Courts sometimes make mistakes in parenting plans.  A court’s ability to modify a parenting plan is limited, but its ability to clarify an existing plan is broader.  Washington child custody attorneys know that whether an order changing a parenting plan is considered a modification or a clarification may be the determining factor in whether the change is valid, as seen in a recent case.

The case involved a father with a history of mental health issues, marijuana use, and erratic behavior.  This behavior included what the appeals court described as “obsessing” over his daughter being sexually abused.  The trial court included in the parenting plan a provision that allowed the mother to temporarily suspend the father’s visitation right in the event he began acting erratically, or if there was “objective evidence of decompensation or elevated paranoia.”  She could request that he seek a mental health evaluation.  The father’s residential time was to resume when the doctor approved him to have overnight time with the child.  The provision required the mother to file an affidavit/declaration within three business days of the incident.

The mother invoked this provision a week after the entry of the parenting plan.  The father underwent a psychological examination, but the mother did not believe it was sufficient and did not allow visitation to resume.

The father moved to enforce and clarify the parenting plan, including the reinstatement of his visitation and a clarification that he had satisfied the requirement for psychological evaluation.

The trial court issued a preliminary order in the father’s favor more than a year after his visitation was suspended.  In the oral ruling, the judge indicated that the mother had used the provision in a way that was not intended by the court.  The final written order stated that the parenting plan was “clarified” to address the father’s behavior through a motion.  The order provided that, if the mother thought the father exhibited decompensation in a way against the child’s best interests, she was to bring a motion to have the issue addressed by the court.  It further stated that the Family Law Motions Calendar would develop a remedy with the intent of reinstating the parenting plan once there were adequate assurances that the father was stable.  Additionally, the order required the father to sign a release to allow his therapists to provide quarterly reports to the mother.

The mother appealed, arguing the order constituted an improper modification of the parenting plan.  A clarification is just defining or spelling out the rights that have already been given.  A clarification may provide procedural details or explain the provisions that are in the parenting plan.  A modification, however, extends or reduces a party’s rights.

The appeals court found that the change was not a change in the substantive rights of the parties.  The trial court had provided an alternative procedure in the original parenting plan, and the change essentially returned to the default procedures.

This case suggests that a procedural change may be considered a clarification.  If you are facing child custody issues, you need an experienced Washington child visitation attorney to fight for your rights.  Call Blair & Kim, PLLC at (206) 622-6562 or contact us online to discuss your case.

More Blog Posts:

Right of First Refusal in Washington Family Law Matters

Washington Parenting Plans and Substantial Changes in Circumstances