My ex-wife and I divorced a couple years ago. The judgment dictates that I would receive parenting time 3 days per week, while my ex-wife would have primary residential responsibility. Our daughter was almost 2 when the judgment was entered and now will be attending kindergarten in the fall. I know that once she begins attending school full-time my parenting time will be limited, and rather than limiting my parenting time I believe it best for her to be with me full-time. I need to know how I can accomplish this.
--If he can accomplish this is dependent on many factors.
--There's not enough information provided to give a specific response, but I can explain, in general, how the process works.
So what kind of information would you need to provide a specific answer?
--I'd of course need to see the original judgment and make sure it was venued in North Dakota.
--Assuming it is, I would look to see if specific language is included in judgment that allows for modification in certain circumstances.
--I would also check when the judgment was entered.
Why is specific language regarding modification important?
--If specific language is included in the judgment the court will decide if modification is appropriate based solely on the best interest factors (the same as an initial determination of residential responsibility and parenting time) rather than having the higher standard the court generally requires for modification.
--An example of specific language would be that "upon the child reaching school age the plan will be revisited."
--Very often this specific language is also accompanied by a provision directing the parties to first attempt mediation, so it is very important that the original judgment be reviewed.
--I'm assuming in this case the specific language is not present.
And you mentioned something about checking when the judgment was entered.
--Yes; like I said, there is a higher standard when there is no language in the judgment addressing modification.
--That's when we would want to look at when the judgment was entered and determine if it was entered less than 2 years ago or more than 2 years ago.
So what happens if the judgment was entered less than two years ago?
--It is more difficult for the moving party.
--In order to even be heard by the court the moving party has to show 1 of 3 things:
--willful and persistent denial of parenting time; or
--current situation may endanger child (either physically or emotionally); or
--primary residential responsibility has already changed for 6 months.
What about if it's been over two years?
--The moving party has to show there has been a material change in circumstances (which is something that the court wasn't aware of at the time the original judgment was entered).
So what is the actual process for changing primary residential responsibility?
--Whether the judgment was entered less than 2 years ago or over 2 years ago a motion for modification needs to be filed with his supporting affidavits.
--If court determines he has made a prima facie case the case is referred to mediation.
What is a prima facie case?
--It is a bare minimum which requires facts-that if proven-support a change in residential responsibility.
And if the court finds there is a prima facie case?
--The case will first be referred to mediation.
--If mediation fails, there is an evidentiary hearing where the court will decide if a change in residential responsibility is appropriate.
So in this case, assuming it has been over 2 years, how would it be determined if a change in residential responsibility is in the best interests of the child?
--Assuming the court also found the child beginning school is a significant change in circumstance, which would be in the court's discretion, he will have to show that a change of residential responsibility is in the best interests of the child.
--However, these cases are extremely fact specific, so we can't possibly know if a change in residential responsibility is even feasible.
--What we do know is that the court will weigh each of the 13 best interest factors as they apply to each parent.
--These factors include:
--ability of each parent to provide for child;
--emotional ties between parent and child; and
--additional factors including anything that the court may find relevant.
Ultimately this does not sound like an easy process.
--No it is not.
--Like I indicated earlier, there are many factors to consider when attempting to change residential responsibility.
--Courts do not take these modifications lightly.