WANT MORE PARENTING TIME? BE CAREFUL THE COURT DOESN’T CALL IT “CHANGE OF CUSTODY”
Updated: Sep 21
Say you have parenting time every other weekend with an off week overnight and you want to change your parenting time to week on/week off. You already have joint legal custody. You go to the county clerk to get the paperwork to file, and there are two forms from which to choose—“Motion Regarding Parenting Time” and “Motion Regarding Custody.” Which one do you pick? The “Motion Regarding Parenting Time,” right? Well, not so fast. I know somebody who recently tried to do just that, and after filing the “Motion Regarding Parenting Time” was told the following by the court:
Please be advised that after a review of your Motion Regarding Parenting Time, it appears to indicate that you are actually requesting a change in custody (“50/50 parenting time”).
And yet this person did not want to change custody. S-he already had joint legal custody! This person only wanted to change parenting time and filed the only motion offered by the clerk that actually said the words “parenting time”! Worse yet, this person did not understand was that it is much harder to win a request to change “custody” than it is to win a request to change “parenting time.” This person was being set up to lose.
This is another example of why it is so difficult for parents to represent themselves in family court. It often seems as though “up is down and down is up.” The caselaw that we have been provided by our appellate courts, which our judges are required to follow, is partly to blame. Under that caselaw, if your request to change “parenting time” will also change something called the “established custodial environment,” then—presto(!)—your request will be subject to the more stringent requirements for a change of custody.
What constitutes a change in the “established custodial environment”? Generally, it is when the overnights change by a certain amount. But how many you might ask? Where is the dividing line? Unfortunately, the caselaw is not consistent as to how many overnights constitutes a change. In some cases 20 overnights will do, in other cases 50 or more. If you are asking to change a lot of overnights, like the person I described above, I strongly suggest you employ the services of an attorney to help you find the cases that you need to show the court that you are really just asking to change parenting time and not “custody.” Do not allow yourself to be set up to lose.
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