How Can I Get My Children’s Parenting Plan Modified?


This is a question I am asked around 25 times a year. First, what is a parenting plan? From at least the time when the legislature did away with the “primary caretaker rule”, which usually favored the Mother in custody cases, parties have been encouraged to fashion “shared parenting plans” under which to raise their children.

Seminar speakers at the time assured us that the new rule would have very little impact in the “real world”. They were wrong, and I tend to think more good has been done by the new rules than bad.

Under the old standards, one parent “won custody” or was awarded custody, and the other parent was the “absent parent” entitled to “visitation” and access to the children’s (school, medical, and juvenile) records via a “consent” signed by the “custodial parent”.

The inequity of such rules is apparent to me now, although back then I took comfort that the parent who had been more involved in the children’s lives maintained “control”.

The term “Major non emergency decisions” means decisions made relative to medical treatment, schooling, extra-curricular activities, and religious upbringing. The “non custodial parent” could rage over the administration of the asthma medicine or Ritalin for ADHD, and some even sneaked their children to another Dr. during the week-ends, but it was far from a healthy situation. One parent kept “control”, and the other was clearly “second class”. Often the Court referred to that parent as the “absent parent”. Father’s and men’s rights organizations were militantly against that status quo.

Under the shared parenting concept, “fit parents” usually have equal access to records and co-equal decision making, on “the major non emergency decisions”.

With each parenting having a veto over “major non emergency decisions”, you might think there would be constant stalemate. NOT TRUE. Things are have become much better. Now that the “non residential” parent can speak with the pediatrician, the coach, and the Sunday school teacher, and have a say in major decisions, there is less contention. Having the right to drag the other parent to the mediator, at a shared cost usually leads to some kind of compromise solution. Of course, one of the parents usually ends up making these decisions more than the other, but having “the right” to share in the decision seems to ameliorate some of the resentment and distrust. I often urge parents to go talk with the teacher or doctor together.

Most parenting plans in North Central WV result from agreements achieved at mediation. When parents cannot agree, the Court decides.

BUT, what happens when one party is unhappy with a parenting plan? Each year I see a dozen or so “pro se” Petitions to Modify Parenting Plan. “Pro se” is another term for “self represented”. So far, not one of the pro se petitions states a case under existing statutes. That means they should be thrown out immediately, but our Family Courts have been too intimidated by recent WV Supreme Court rulings requiring them to excuse away the mistakes of pro se litigants. That’s a bit of an exaggeration, but it can be frustrating to an attorney to make an objection or file a motion that would be sustained or granted, BUT FOR the fact the other party is representing herself or himself.

The modification statutes are in WV Code Article 48, Chapter 9, Section 401, “Modification upon Showing of Changed Circumstances or Harm”, and Section 402, “Modification Without Showing of Changed Circumstances”.

The old standard was, simply, “Material Change in Circumstances”. But, when the judges returned from their judicial training, the full import of these statutes became clear fairly rapidly. Judges use them as an excuse NOT to do the hard work of tailoring parenting plans to the best interests of the children. Truth is they do not have time.

Section 402 allows modification if:

a. The parents agree and the Court determines the agreement is knowing and voluntary, and not harmful to the children;

b. There is NOT a material change in circumstances but the parties have been following a different (de facto) plan continuously, and voluntarily, for six months;

c. The modification constitutes a “minor modification” of the plan;

d. When modification is necessary to accommodate the reasonable and firm preferences of a child who has attained the age of 14; and

e. Modification can be granted when the other parent has made repeated filings of fraudulent reports of domestic violence or child abuse.

There is also case law that one parent’s withholding of the child from the other may be a basis for a transfer of custody.

Modification based on “substantial and material change in circumstances” means facts which arose since the entry of the prior custody order, which were not known at the time of the entry, and were not anticipated by the parties, such as Mom’s new boyfriend’s opening a meth lab in her garage! (Do you think I am kidding?)

We try not to use the terms “custody” and “visitation”, preferring the more benign  “shared parenting” and “time with the child”, but old habits die hard.
Realizing that single moms are often at a disadvantage in funds and resources, the legislature further determined that “choice of reasonable caretaking arrangements, including day care” would not be a “material change”. Nor is a parent’s remarriage or cohabitation a “material change”.

Of course it is “verboten” to make any moral judgment regarding a parent’s “living in sin”. And, properly, a mixed racial relationship, and a party’s sexual preferences are supposed to be  irrelevant unless direct harm to the children can be proven.

West Virginia is the State which had the famous “Gay Parent Case”, In Re Clifford K. That is the case that motivated the “Kansas Krazies” to demonstrate in Buckhannon on the campus of WV Wesleyan College, during the Sago Miners’ Memorial Service.

In “Clifford K”, the WV Supreme Court awarded custody of a five year old child to the surviving lesbian partner of a biological mother killed in an auto collision. The Court ruled that she was the child’s “psychological parent”, which, of course, she was.

Since “grandparent’s rights” are virtually non-existent, since the U.S. Supreme Court Ruled thereon, many a grandparent has custody right now via their status as “psychological parent”. (Editor: a recent case, In Re: Healia (sp?), has turned the advantage back to biological parents in all but the most egregious situations.)

The point of all this is that WV Family Courts now try to apply a formula to Petitions for Modification, and it is clearly an area of the law that one should not try to traverse without a good attorney. Being a “good lawyer”, my bias is clear, but my views are based on sound logic. Until one understands how judges look at this subject, he/she does not have a chance of successfully pursuing a petition to modify a parenting plan.

This post was written by Burton Hunter

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