Life changes after divorce, right? If your parenting plan just isn't working anymore and it's been more than a year since it was approved, it might be time to put together a new plan and make it official.
Not so fast. There are some serious pitfalls that may be lurking. A poorly made agreement could lock you into giving up things you don't intend to.
In this episode of the Modern Divorce Podcast, host Billie Tarascio and her Win Without Law School colleague Julie LaBenz, talk about all the valid reasons why you may want to make a change and how to do it yourself properly if you're not working with an attorney.
Listen in if you want to learn how to get it done the right way, and how to stay out of trouble.
Valid Reasons To Change Your Parenting Plan
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[00:00:06] Billie Tarascio: At Modern Law, we don't believe in a one size fits all solution, and we understand that some clients need full representation using every tool in the legal toolbox. This is especially true for custody and alcohol cases, which is why Soberlink has been one of the most important tools for my client.
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[00:00:56] Julie LaBenz: This week at Win Without Law School, we've been talking about, um, [00:01:00] discovery, which is, um, you know, probably a tool that a lot of self-represented parties don't use, however, You could get served with a discovery request if the opposing parties represented. Um, or, you know, there's a lot of complaints that come up from self-represented parties about not receiving the documents they're supposed to receive and how to get documents from the other side.
And so I tried to simplify it as much as possible and really empower people to get a hold of the information and documents they need, depending on whatever type of case they have.
[00:01:39] Billie Tarascio: Yeah. That's awesome. Um, I think it is a really great topic. You know, people are required to disclose the things that we ask for in discovery.
Usually. Usually the things that we ask for are covered in Rule 49. Not always, but usually the only real differences, you can't get a [00:02:00] motion to compel granted or sanctions really, unless you do the discovery request, I think. Has that been your experience as
[00:02:07] Julie LaBenz: well? So you definitely need to make efforts to resolve the issue between the parties.
Mm-hmm. Before you just run to the court. So it could be in the form of a discovery request, but interestingly, and I didn't even realize this point, but in preparing the lecture on discovery, there's actually a part in the rules that says you are not supposed to request rule 49 disclosure within a discovery request.
Everybody does it all the time. Really?
[00:02:37] Billie Tarascio: Like anything that's covered by Rule 49, you should not put in your discovery request. Yes. Well, goodness, my templates of requests for production of documents covers everything, which of course covers part of what's
[00:02:50] Julie LaBenz: in Rule 49. Yeah, cuz it's usually saying, you know, I'll bank records for the last three years or something like that.
And that is gonna cover rule 49. So. I technically that's what [00:03:00] it says, but in practice, yeah. A lot of attorneys do use a discovery request to try to get disclosure they're entitled to. Right. Um, so yeah, that's interesting. But to set up for a failure to disclose, um, there, if you wanna get attorney's fees or certain times of sanctions, you do need to set it up and try to work it out and mm-hmm.
You confer and all of that stuff. Mm-hmm. And, mm-hmm. It's amazing. You know, when I've pursued those things in the past, how detailed you really need to get on your good faith consultation. Otherwise the judge can wiggle around through there and find reasons to deny your request, unless you're really on top of that.
[00:03:38] Billie Tarascio: Yeah. You have to be so specific. It's like this, it's an exercise. Sometimes in futility it, it seems like.
[00:03:47] Julie LaBenz: Yeah. And we also talk about, you know, is it more worthwhile to try to get this stuff from the other side or just get a subpoena? Right. And And sometimes the subpoena route is the [00:04:00] least expensive and the most expeditious
[00:04:02] Billie Tarascio: too.
Absolutely. Absolutely. Now pan self-represented litigants get subpoenas. Yes. Yeah. All they have to do is go to the clerk of the court and um, the clerk will issue a subpoena for them to serve upon whatever third party they need to subpoena. Yeah.
[00:04:22] Julie LaBenz: And in the, when without law school lecture, we went through the whole thing, um, the form, the standard form, and then the nuances of filling it out, because I'm sure you've experienced this, Billie.
You know, you don't name the right person in the subpoena or the right department. And you know, like big credit card companies, they'll have a separate department and a separate address. Yes. Just for subpoenas. Yes. And so if you don't use that exact address, it's gonna bounce back. So it's really important to have a high level of specificity in your subpoena.
And you know, there's two types of subpoenas. There's for a witness to [00:05:00] testify or what we call a subpoena deuces tecum, cuz we have to have really complicated legal words for everything. And that's for documents.
[00:05:08] Billie Tarascio: Yeah. Okay. So for those of you who are just joining us, my name is Billie Tarascio. This is Julie Benzs.
We are attorneys in Arizona. We own our own law practices. Mine is in the Phoenix area. Modern Law. Julie's is in Sedona Laben Law, and we also have a company called Win Without Law School. And we've been talking just now about when without law school, if you are representing yourself when without law school isn't.
Excellent, excellent tool that you should consider joining to learn about all these things that we're talking about. We also go live every Thursday and we have a topic, dejour. Today we're talking about reasons to modify and then we answer your questions. So if you've got questions, go ahead and put them in the comments, either on YouTube, on our Facebook group or on TikTok, and we will get to those after we talk about our topic to Jo.
Julie, do you wanna give them the [00:06:00] disclaimers of the day?
[00:06:01] Julie LaBenz: Yeah. So for today's discussion, um, this is gonna be based around Arizona law because Billie and I are licensed in Arizona. Um, also we can't give legal advice. We'd have to meet with you one-on-one, get the nuances of your situation, and really talk to you in order to give you legal advice.
So this is just legal information and, um, there's no attorney-client privilege that form. So by listening to us today, we don't become your lawyer. Um, this is just a discussion so you can learn more for free about Arizona law. And if you want even more detailed instruction, then check out when without law school.com.
[00:06:41] Billie Tarascio: Absolutely fantastic. So today's topic is reasons to modify and how to properly modify your Divorce or original custody, um, decree. What are the basics of what people need to know? Yeah,
[00:06:55] Julie LaBenz: and, and specifically we're gonna look at parenting plans. So what kind [00:07:00] of evidence do you need or what kind of facts situation do you need to qualify to modify your parenting plan and where do you get started?
So, um, Anytime you're gonna modify either your Divorce decree or if you were never married, but you established custody, so you have a custody order if you're gonna modify the parenting plan. You've got to show a substantial and continuing change in circumstances that merits the modification. And so in certain situations it's totally straightforward and proving the change in circumstances is really easy.
So for example, let's say your parenting plan was established when your child was an infant or a toddler, and now they're getting ready to go to school. That's a major change. The whole schedule's gonna change. And that's a great reason to modify your parenting plan. So just any thoughts on that as far as it being as easy as the kids have gotten [00:08:00] older and things have changed?
[00:08:02] Billie Tarascio: Yeah, absolutely. So I think when I am talking with people who have infants or toddlers, that's one of the things that we really need to be thinking about is because you'll have situations where you can have equal parenting time. When they're little, but you can't, when they're bigger based on where people live.
Like, you know, I'm in the East Valley, so it's, I, I just had somebody the other day who had, you know, dad lived in Queen Creek, mom lived in Mesa. A child is gonna have to go to one school. Yeah, and that's a major change. It's a major decision and you kind of wanna get in front of that. So if you have joint legal and you have equal parenting time and it's no longer feasible after your child goes to school, or you have to pick a school and neither one of you are going to agree, um, you're gonna have to go back and get a modification.
Now in order to get a modification, you've gotta do that substantial and continuing change. We've got that right. That's easy. You also usually have a mediation requirement.
[00:08:57] Julie LaBenz: Yeah, and, and I love that you bring up the [00:09:00] timing. Because you can't wait until the week before school's gonna start. Mm-hmm. And you gotta factor in that the court is gonna take some time.
So maybe you need to file a year ahead of the kid entering school. Yeah.
[00:09:16] Billie Tarascio: And certainly you need to go to mediation a year in advance. You need to determine is there a disagreement because you don't have a substantial and continuing change. If you can't document the fact that there's a, a, a current pending imminent disagreement that warrants a change.
[00:09:33] Julie LaBenz: And so how, what type of media mediation services would be available at that point?
[00:09:39] Billie Tarascio: You can either do private mediation, uh, Um, or you can request conciliation services. So, uh, and if you can't get an agreement for mediation, then you can file a petition to require the person to go to conciliation services before you file a petition to modify.
I had this happen in one of my cases recently where the [00:10:00] attorney on the other side filed to modify, it hadn't been a year and they hadn't gone to mediation, and the judge on their own kicked it out. So at that point, let's say that you're responding to that somebody's filed to modify and you don't wanna modify.
You can either file a motion to dismiss and point out their errors, or the court might file that. Might dismiss it on their own. And then
[00:10:19] Julie LaBenz: what's your option? That's totally right, Billie. Um, because the court in a modification has to first evaluate the petition and decide if it's even gonna go forward.
[00:10:28] Billie Tarascio: Right? Right. And if you, if you're stuck and the other side won't go, then you could file a petition to require them to go to conciliation services. And you can do that before the one year mark. Now we didn't talk about that one year. Mark. Can you explain what that is and why it's important?
[00:10:44] Julie LaBenz: So the court doesn't want parents coming back month after month, you know, oh, we reached an agreement.
Well now we're fighting. So now we're back in court and we want it to change. The court doesn't wanna do that. So there's a rule that you [00:11:00] have to wait at least one year from the entry of your parenting plan. To seek to modify it. Now, there are some exceptions, but of course you have to show additional evidence to qualify for those exceptions.
You can file earlier than the year if you can show some sort of serious endangerment to your children. Um, also, if one parent isn't following the terms of your parenting plan, there's also a way, I think it's after six months that you can come in and modify on those grounds. Mm-hmm. But, On that point of the other side, not exercising the time, I think you really need to analyze whether it's worth it or not.
You know? Do you wanna just keep documenting that they're not exercising their time and build a stronger case, um, and maybe see what happens? Or do you wanna go back right away and get it changed? That'll definitely be a case by case. Decision to make, but keep in mind that if you do file based on them not exercising the time, they may immediately start exercising it.
So that's just [00:12:00] some of the strategic stuff that you'll need to think about prior to doing a modification based on not exercising time under a parenting plan. Yeah, and
[00:12:09] Billie Tarascio: what's interesting about the statute is it doesn't really. Like, let's say somebody moves. If somebody moves, the current parenting plan is impossible.
That's a substantial and continuing change, but you still are technically required cuz there's no emergency, I think to wait the year. Is that your understanding as well?
[00:12:30] Julie LaBenz: Yeah, that's, that is my understanding. Now you may be able to petition under a relocation request. Mm-hmm. But yeah. But. There could be a defense raised of, Hey, the year hasn't passed.
So yeah, there's some questions around that.
[00:12:47] Billie Tarascio: Absolutely. Um, but you can file a petition for conciliation services. Which kind of starts that ball rolling before the one year mark. Right. So in Maricopa County, that would send you, that [00:13:00] would order you to appear for reconciliation services, which is mediation.
Do you have that in Sedona as
[00:13:05] Julie LaBenz: well? Yeah, we have really great, um, mediators in, um, the Avai County Superior Court. So yeah, they have a great mediation program. That's
[00:13:13] Billie Tarascio: fantastic. So you don't have to wait the year to do that, and it is a hurdle you have to do in advance. So, uh, definitely something to think about.
Now let's, let's talk about like reasons to modify versus when is it not worth it? Because a lot of people don't know when is it worth it for me to file for modification and when should I just deal with it or leave it alone?
[00:13:34] Julie LaBenz: Yeah, so. You know, we talked about the example of the infant who's now grown up and is going into school.
That's definitely a good time to modify because your parenting plan is likely gonna change drastically at that point. Um, Also, let's say you have a certain plan, but now the kids are in high school and they're doing a lot of different activities and maybe they have travel sports, [00:14:00] and there's just been a lot of changes with the kids' needs, and a certain schedule would be better for them, and you're not able to reach an agreement with the other side.
That's a possible situation, obviously moving, um, relocating. Those could be reasons to request to change the plan. And then, you know, there's emotional abuse, physical abuse, um, things that could come up in that realm. About reasons why maybe one parent should have less parenting time than they used to.
Maybe they've started consuming alcohol, um, during their parenting time. Maybe they got a d u i, maybe they're using drugs now, like there could be changes with one of the parents where now there's concerns about their parenting time and it's not best for the children to spend as much time with them.
Yeah, those cases could be more challenging. Absolutely.
[00:14:54] Billie Tarascio: And. Sometimes parents are able to work it out. And [00:15:00] then the question is, should you file to modify or not? Should you leave well enough alone? And many times, I mean, I think you have to, you should talk to a lawyer because. There are pros and cons in any situation, but I want to say many times it does not make sense for you to file in court.
It it many times it makes sense for you to just agree. I. And execute whatever the in writing new plan is in writing. But even if you can't get it in writing in practice, you're going to be able to develop enough in writing over time to show this is the change we made and why. And you can later use that to show.
We both thought this was in our children's best interest and we executed it. So, uh, it's just something to think about because there's risk anytime that you all get attorneys involved or judges involved. There's risk that your agreement that's working for you and your family will
[00:15:59] Julie LaBenz: get screwed [00:16:00] up. And I find too that there's certain situations where you could reach an agreement with the other side, but then they don't stick to it.
Or they'll be like, oh no, that wasn't the actual term and. And it can get kind of, you know, hazy and fuzzy and it's just, it's not really what you're looking for. And so in those situations, sometimes it is really good to get it into a court order and if you can work with the other side to do a stipulation.
Yeah. Um, it is possible to get the stipulation drafted. Mm-hmm. You both sign, you need to sign before a notary for that type of agreement to be accepted by the court. And then you could lodge it with the court. The judge signs it. So there is a way to do it on your own. And we do talk about that in when without law school, with the forums and the process.
Um, and I definitely like Billie, you should start there. You should start with [00:17:00] trying to get an agreement in place before just running to the court, either for mediation or. Um, a contested petition. At least that's my approach. I would wanna start with an offer. Hey, look, you know, our daughter's getting ready to go into school.
We need to figure out where she's going to school. And either, Hey, I'd like to have this conversation with you. Can we sit down and talk? Or, here's my proposal. Let me know by Friday what you think.
[00:17:30] Billie Tarascio: Yeah. And can we talk about the stipulated, um, modification? Because personally, because I'm usually involved in pretty complex litigation, I haven't had this personally come up a lot.
Can you, do you have to have a petition to modify in order to file a stipulated, um, proposed order? Or can you just file a motion with a, with a proposed order for a stipulated agreement that changes the
[00:17:57] Julie LaBenz: parenting plan? So [00:18:00] this is an open question Okay. That I've had for a long time. Yeah. And I think in practice, I think the correct formal way to do it is a petition service stipulated order.
Okay. However, I think that the courts will be flexible with, in particular, self-represented parties if they've reached an agreement and doing just a stipulated order modifying, I believe that that could go through without a petition. But you know, even so let's say you lodge that and the court sends out a notice saying, Hey, you need to file a petition first.
Use the court standard form, file it, and then relaunch your stipulated order. So, um, you know, as. As a self-represented party, it may be like, oh my gosh, I didn't do it exactly right. But as a lawyer, we know like, that's how you learn. It's the practice of law. Okay, I got further instruction from the court.
I'll just do it the way the court wants and everything's [00:19:00] good. Right. So, um, I would say start with the stipulated order, see how it goes. But in my own practice, I think I've done the petition, acceptance of service, and then lodged the order pretty much all together. Yeah. For a modification.
[00:19:14] Billie Tarascio: Even if the judge doesn't sign off on it, it will still meet the requirements of being a Rule 69 agreement, which makes it binding, binding, subject to the court, approving it, and the, and the court almost always, almost always approves rule 69 agreements executed by the parties.
[00:19:36] Julie LaBenz: Right, and so Rule 69 agreement is just that it's an agreement of the parties and within the Arizona rules of family law, law, procedure, that particular rule lays out exactly what's supposed to happen for an agreement. And I always like to give my clients a heads up. Because if you're in court and you've reached an agreement, things get serious fast.
Once the Rule [00:20:00] 69 starts, both parties get put under oath, the judge starts asking them questions and it's like, whoa. We were just negotiating. Things were kind of loose, and now it's so formal. So it's always good to know what to expect when a Rule 69 agreement unfolds. It's really pretty straightforward and all of the questions that the judge asked.
What they've done is they've taken the most common objections to a mutual agreement. And they've taken those, and they make you stipulate that all of those things don't apply, so that you can't make those, that objection afterwards. So it's like you're not under duress, right? And you understand all the terms and you could have gotten advice if you wanted to.
And you know, on and on and on all these things where people would, you know, object later. Now they've taken those objections away from you in order to make this a rock solid agreement that can't be overturned.
[00:20:50] Billie Tarascio: Yeah. And there's a lot of ways it can happen. It can happen in writing. If you sign it, it can happen if you are at an R M C and the judge decides to swear you in and [00:21:00] asks you to put an agreement on the record.
Um, it could happen if you get sent to, um, some sort of mediation that is court sponsored and they will lock in that Rule 69
[00:21:11] Julie LaBenz: agreement. Yeah. And, and that's where people. Need to know going into a mediation, going into an R M C, going into a settlement conference, that you could reach a full agreement at the end, and you need to be ready to understand and accept those terms and advocate if you don't agree.
Because once it's done, you're just gonna waste time and money trying to undo it. It's merely impossible to undo one of those types of agreements.
[00:21:39] Billie Tarascio: Yes. The only exception is there is a specific window and period of time where you can get out of an agreement that you've entered into at a, um, conciliation services when you haven't had the advice of an attorney.
And I just had to use this in a case where, um, my client gave up things that he wasn't, um, intending to give up. Like he just didn't [00:22:00] understand. He gave up final decision making and he's like, cuz the mediator was like, it's no big deal. And I'm like, mm, it's a big deal. Like you got nothing in return. So we.
And then Rule 67, I think at 67 or 68, allows you to file an objection and there's a procedure for like, oops. But most of the time they're very difficult to get out of. And you have to file a Rule 85 motion to set aside an agreement. And there's very few reasons that you can do that.
[00:22:27] Julie LaBenz: And that's, you bring up a good point, which is you gotta be careful about.
What the mediator and or the judge is saying to you because their motivation is to get the deal done. Yes. And so, and I honor that, you know, that is their role, but that doesn't always mean that their, uh, Thinking of things from your perspective, right? And so it's easy to trust those people because they have the experience and you [00:23:00] know, they, they're very convincing.
But sometimes you have to pause and be like, is this really best for me, or is this just getting the deal done? And I'm not gonna be too happy with this once it's all said and done.
[00:23:11] Billie Tarascio: Yeah. And if you do find yourself in a position where you've entered into something in, in a conciliation services, remember you've got that small window of out and it might be sent, it might make sense to talk through that or think through that and perhaps file that objection.
[00:23:27] Julie LaBenz: So, you know, back to modifying parenting plans and let's talk about what can be modified. You know, you're looking at the schedule. You could go from. A 3 22 plan to every other week. Um, you could go from essentially equal to a plan that, um, has one parent having the majority of the parenting time. Um, you could change pickup dropoff location.
You could change pickup dropoff times. You could change a holiday schedule. [00:24:00] Um, you can also change, um, the terms about communication, how the parents communicate together, how um, the children communicate with the other parent when it's not their parenting time. Um, so there's a lot of different aspects of a parenting plan that can be changed and.
When you, if you are gonna go back to court, I would suggest analyzing your whole plan and writing out every single thing you'd like to change, because you're not gonna go back repeatedly. So if you are gonna have the, you know, spend the time and effort going back to court, then get everything in there that you possibly wanna change rather than leaving something for later, because it probably won't ever get addressed.
[00:24:45] Billie Tarascio: Yeah, absolutely. One common reason that I see people try to change a parenting plan is because they are newly decoupled or newly remarried and they wanna get both families, kids on the same [00:25:00] schedule and it seems to make perfect sense to them. And I have seen that not work. Um, have you had that experience as
[00:25:11] Julie LaBenz: well?
I haven't, but I can imagine emotionally the other parent might be like, Ugh, you know, whether it's conscious or not. You know, not necessarily, not necessarily wanting to accommodate their ex's new family situation. So it probably is a more challenging case. Yeah.
[00:25:31] Billie Tarascio: Or you're, you're, you wanna, you wanna change schools because you want your new children and your, you know, your common children and your new children to go to the same school.
And, and I'll tell you, those cases are hard. It makes perfect sense for you practically to have all of your new collective children, you know, whether they be step or half or joint or whatever, um, on the same schedule and going to the same school. And it might, you might need that for convenience purposes and, [00:26:00] In my experience, judges really try to look at this case in a vacuum.
These two parents and their joint children and in and in that child's best interest, not what is in the best interest of you and your family. And so I think that's maybe the biggest. Mistake I see people make when they are having that particular, um, situation, is trying to explain why it's best for the family unit, your new family unit as opposed to this particular child.
And I think that's just a tactical error. So when you think about the modification that you want, you have to really think about how it's best for the common child and how you're gonna make that argument about them.
[00:26:42] Julie LaBenz: Yeah, that's a really good point because you could be like, oh, well it'll be more convenient for me for all this to work out.
Sure. But that's not what the standard is under the law. It's a substantial and continuing change in circumstances that merits a modification for the children at issue in the case
[00:26:58] Billie Tarascio: that is in the best interest [00:27:00] for them. Exactly not your family. Um, which doesn't make sense practically if you're not a lawyer because you're like, but wait, this is my real life and my whole real life.
I get where you're coming from. It's just not good tactically to take it that way.
[00:27:17] Julie LaBenz: And then of course, another element to consider is how this could impact child support. Mm-hmm. Because if you're modifying the parenting plan, Um, to a certain degree that could change the child support obligation. And so that's something to be cognizant of.
In particular in the negotiations, you may wanna run some child support calculations prior to, um, negotiating the parenting plan, either A, to see what it looks like if you're gonna need to pay more. Mm-hmm. Or B, what it looks like if you know you're, the amount's gonna go up and you would receive that.
And looking at the difference between what the current amount is. And possibly weaving that into the [00:28:00] negotiations because if you're in a position where the parenting change itself is more important to you than the money. Yeah, then that could be a really great piece of leverage for you in negotiations saying, Hey, look, if you agree to this change parenting plan, even though you would be required to pay a hundred bucks more a month, I will, you know, we'll deviate down, or we'll find a way to make that work within the law, and you can stay at the same amount, but I'll have more parenting time.
And for some parents, that is, it's totally worth it in the long run to let go of that a hundred bucks, for example, than to push forward through a year long court battle to get it.
[00:28:36] Billie Tarascio: Totally agree. This is leverage. You may not know you already have. And the 2 20 22 child support guidelines made a big impact for a lot of people on the child support amount, especially if you have higher incomes because it took the combined child support amount from $20,000 of combined joint income to $30,000 of combined joint [00:29:00] income.
So if either one of you are higher earners, It could have made a massive impact on that child support number, which you might wanna incorporate into this negotiation to change your parenting plan.
[00:29:13] Julie LaBenz: Yeah. Um, so it, it's definitely a factor to consider and if you are the parent who wants more of the parenting time, you can probably rest assured that the other side's gonna not wanna pay more child support, you know, depending on the situation.
So, Have that ready to go. Or if you fe you know, you're like, Hey, look, I'm having more parenting time. I should have more child support then, you know, be ready to make that case as well.
[00:29:41] Billie Tarascio: Absolutely. Okay is there anything else we wanna cover on modifications of parenting time?
[00:29:47] Julie LaBenz: Yeah. Um, just a final point because we had also talked about where do you get started and so we kind of covered this, which is. You know, mediation settlement offers. Looking at your timing for when you're gonna actually [00:30:00] file if you need to file, um, and then pursuing it from there and making your case about why there's the substantial and continuing change in circumstances and what you want the court to do.
If you're looking for step-by-step instruction and forms and everything to pursue a parenting plan modification, check out one without law school because it's all there. The forms video instruction. And also, um, tips about this negotiations and, and how to try to settle it outside of court. So if those tools would be helpful to you, check out when without law school.com.
[00:30:38] Billie Tarascio: It is. As Julie and I keep saying, it is the very best resource that you can get if you are not hiring an attorney and if you are representing yourself. So we strongly believe in it. We're, we're building it out every single week. It's growing and um, we're just gonna keep doing that. So definitely check that out.
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