October 1st, 2013

How Soon Can I Modify A Parenting Time or Legal Decision Making Order that I Do Not Like?

Submitted by Attorney Douglas C. Gardner

1155206I am often asked by clients that received a favorable outcome how soon the other parent can ask the Court to modify an order, or by potential clients not pleased with an adverse order how soon they can ask the Court to modify the offending order.

First, once an Order has been entered by the Court, a party not pleased with the Order may be able to request that the Court set a new trial, alter or amend the judgment, or provide relief from the judgment or order.  Such motions to the Court must usually be filed within 15 days of the entry of the Order.  Additionally, such motions must usually contain very specific itemization of how the Court erred in entering the prior orders.  For obvious reasons, these motions are often not successful, as the Court is being asked to reverse its own decision, and most people (including Judges) do not like being told that they were wrong.

Within 30 days of a final order (additional time permitted when certain types of motions have been filed and are pending), a parent can also file a Notice of Appeal, and seek review by the Court of Appeals to reverse the Trial Court’s ruling.  In certain cases, when the Trial Court has made a serious legal error, or when the Court has erred by ignoring one-sided evidence and ruled against substantial one-sided evidence, the Court of appeals can enter a decision causing the Trial Court to old additional proceedings and in certain cases enter specific orders determined by the Court of Appeals.

The difficulty with appeals of parenting time and legal decision making cases is that the Trial Court is given wide discretion under the statute to enter orders in the best interest of the child or children.  Put simply, if the possibilities are reflected by numbers 1-10, the trial court has the discretion to make any decision between 3-8, and the Court of Appeals will usually not intervene unless the trial court has entered an order so far out such as a 1 or a 10.  In certain instances the Trial Court will have cited to law, and the law cited to or depended upon is incorrect.  In these cases the Court of Appeals can review the case much closer and can scrutinize the Trial Court’s ruling to a much greater degree.

If these avenues are not available because of the passage of time, or if for other strategic reasons it is determined that a post trial motion or an appeal is not appropriate, the next question is:  When can I (or the other party) seek to modify the parenting time order.

Many court orders, once entered, cannot be disturbed once the time for appeal has passed.  Generally, orders dividing assets and debts are considered final once the time for appeal has passed, and except for very rare and unusual situations, the Court will not disturb these final orders.  However, by statute, any orders related to child support, parenting time, and legal decision making must be reviewable by the Court until the children have been emancipated.  Even in cases of an agreement between the parents that the orders are forever final, the Court continues to have jurisdiction to make modifications.  As an illustrative and extreme example, assume that parents A and B enter an agreement, signed by both, and then signed by the Court, stating that the children will always live with Parent A, during the school week, and always live with Parent B during the weekends.  If Parent A is then convicted of a serious crime such as sexual abuse, Parent B would not be precluded by Parent A from asking the Court to make a change based upon this information that was unknown to the Court (or the parties) at the time the prior agreement was entered as an Order.

On the other hand, consider the frustration of the parent who is constantly being forced to return to court and each time the other parent raises new outlandish and unproven allegations.  Over the 18 years while the child is raised, the parents are in constant litigation and each time one order is entered, the parent less pleased with the Order immediately files to modify the Order.  This would be financially ruinous to the parties, and would clog up the Court system.

By statute, a balance has been formed, which allows for certain emergency cases to return more quickly, but requires the passage of time to request modifications when there is no emergency, but simply one parent does not like the prior orders or when small changes have occurred, which may require modification but which do not rise to the level of emergency status.

A.R.S. § 25-411 provides (in relevant part):

25-411. Modification of legal decision-making or parenting time . . .

A. A person shall not make a motion to modify a legal decision-making or parenting time decree earlier than one year after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health. At any time after a joint legal decision-making order is entered, a parent may petition the court for modification of the order on the basis of evidence that domestic violence involving a violation of section 13-1201 or 13-1204, spousal abuse or child abuse occurred since the entry of the joint legal decision-making order. Six months after a joint legal decision-making order is entered, a parent may petition the court for modification of the order based on the failure of the other parent to comply with the provisions of the order. A motion or petition to modify an order shall meet the requirements of this section.

Prior to filing a motion or petition to modify your parenting time or legal decision making orders, speak with an attorney to make sure that you are in compliance with this statute.  If your former spouse has filed a petition or motion for modification, and you believe that the timing may not be appropriate, speak with an attorney to determine if a motion to strike or a request to dismiss the pleading may be appropriate.

If you are involved in a divorce, legal separation, or annulment case or other family law case, and if you have determined that you need experienced legal representation, please call 800-899-2730 and ask to speak with Douglas C. Gardner, or visit our website at www.yourarizonadivorcelawyer.com.