Modification of a Final Parenting Plan

A final parenting plan is a comprehensive document that is designed to last either a specified number of years or throughout the child’s remaining minority.  Unless specified otherwise, such plans are intended to be final and last throughout the child’s remaining minority.  Consequently, parenting plans can be very difficult to modify.  There is widespread agreement that frequent disputes or litigation between parents is harmful to children.  There is also consensus that changes to a schedule should be a rare occurrence, as such changes can result in parental disputes and cause disruption for the children.  As a result, New Hampshire law imposes limitations on modification of parenting plans.  A court may only modify the parenting schedule in a final parenting plan under the following circumstances:

1. The parties agree to a modification.

2. If the court finds repeated, intentional, and unwarranted interference by a parent with the residential responsibilities of the other parent, the court may order a change in the parental rights and responsibilities without the necessity of showing harm to the child, if the court determines that such change would be in accordance with the best interests of the child.

3. If the court finds by clear and convincing evidence that the child’s present environment is detrimental to the child’s physical, mental, or emotional health, and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in environment.

4. If the parties have substantially equal periods of residential responsibility for the child and either each asserts or the court finds that the original allocation of parental rights and responsibilities is not working, the court may order a change in allocation of parental rights and responsibilities based on a finding that the change is in the best interests of the child.

5. If the court finds by clear and convincing evidence that a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the parent with whom he or she wants to live. Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child’s preference, including whether the minor child’s preference was based on undesirable or improper influences.

6. The modification makes either a minimal change or no change in the allocation of parenting time between the parents, and the court determines that such change would be in the best interests of the child.

7. If one parent’s allocation of parenting time was based in whole or in part on the travel time between the parents’ residences at the time of the order and the parents are now living either closer to each other or further from each other by such distance that the existing order is not in the child’s best interest.

8. If one parent’s allocation or schedule of parenting time was based in whole or in part on his or her work schedule and there has been a substantial change in that work schedule such that the existing order is not in the child’s best interest.

9. If one parent’s allocation or schedule of parenting time was based in whole or in part on the young age of the child, the court may modify the allocation or schedule or both based on a finding that the change is in the best interests of the child, provided that the request is at least 5 years after the prior order.

The legal standards set forth above relate to modification of a parenting schedule.  Other modifications to a final parenting plan, with the exception of relocation of a child’s residence, may be modified based on the ‘best interest of the child’ standard.  This best interest standard is the same standard that is applied to initial parenting rights determinations.

Each case is factually unique.  Whether the facts of a particular case meet the legal standard(s) for modification will vary and depend upon the circumstances of each case.  A court can only modify a parenting schedule if the facts meet one of the above legal standards.

About the Author: Margaret Kerouac

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