Unless parents agree, a parent who wants to modify a parenting order must prove that circumstances have changed significantly
When a parenting order has been entered by a Family Law Court, both parents are required to comply with its terms. Sometimes circumstances change, making it difficult or impossible to obey the order. When that happens, you have options that may allow you to modify (or “vary”) the parenting order.
When parents agree
If both parents agree that the parenting order should be modified, it is usually easy to change it. There are two ways to accomplish that.
If the change is relatively minor (for example, changing the day or time that a parent will pick up or return the child to the other parent), you can apply for a consent order. The application should specify the change you want to make and should reflect the agreement of both parents to that change. Provided that the change is reasonable and does not appear to be contrary to the child’s best interests, the Family Law Court will enter the consent order without the need for formal court proceedings.
The other option is to make a parenting plan. Usually a parenting plan is used when parents are making a comprehensive revision of their agreement for parenting a child. You can consult other articles on our website to learn more about the contents of a parenting plan. A parenting plan can be used to change the terms of a parenting order as long as both parents agree to the terms of the plan.
When parents do not agree
If you want to change a parenting order but the other parent does not consent to the change, you can apply to the Family Law Court for an order that “varies” or modifies the order. Your application must meet a specific legal standard or it will be denied.
To obtain a variance of a parenting order when the other parent does not agree with your proposed change, you must satisfy that court that a substantial change of circumstances makes the variance necessary. A change in the law does not meet that standard. You must prove that the facts relied upon in imposing the parenting order have changed.
A change imposed by an employer in a parent’s hours of employment might be an example of a significant change of circumstances. For example, if a parent was awarded time with a child on specific days of the week but is now required to work on those days, that change of circumstances might persuade the court to vary the order by changing the days on which the parent will have time with the child.
In addition to demonstrating that the change of circumstances is significant, a parent seeking to vary a parenting order must also convince the court that the variance is in the child’s best interests. Proving that a change would be in a parent’s best interests is not enough.
Procedure for seeking a variance
If you want to vary a parenting order without the other parent’s consent, you must file an application with a Family Law Court. If you have not attended family dispute resolution within the previous 12 months, you will need to do so before you file your application to vary the parenting order.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.