Defendant and plaintiff had one child together, DHW, before their marriage was annulled in 2017. Although the parties were originally granted joint legal and physical custody in the consent judgment of annulment, the trial court granted plaintiff sole legal and physical custody of DHW in April 2019 after a lengthy evidentiary hearing. Defendant was granted supervised parenting time three days per week.
The change in custody and parenting time was primarily brought about by evidence that defendant repeatedly disobeyed court orders and parenting-time rules, prioritized his personal vendettas over DHW’s precarious mental health, and continuously made unsupported allegations that plaintiff and her family were abusive.
Three-Phase Parenting Time Schedule
In February 2020, the parties agreed to entry of a stipulated order establishing a three-phase schedule for defendant to return to unsupervised parenting time. In the first phase, defendant would have three supervised parenting-time visits each week. In the second phase, defendant would continue the same general parenting-time schedule, but only every other visit would be supervised. The third phase involved parenting time without any supervision.
The order provided that defendant would automatically transition to each successive phase after a period of time unless the parties’ arbitrator determined that a problem required delay of the automatic progression. The phases did not progress as contemplated by the stipulated order because plaintiff raised concerns with the arbitrator, thereby triggering the delay provision.
Defendant’s August 2021 motion seeking a change of custody, modification of parenting time, and other relief. Defendant complained that 18 months after entry of the stipulated order regarding the parenting-time phases, he was back at square one with supervised parenting time and he was under the microscope while plaintiff’s dangerous and harmful behavior went unchecked and unmonitored. Defendant made several complaints about plaintiff’s parenting decisions.
The trial court heard oral arguments, but ultimately denied defendant’s motion without an evidentiary hearing, reasoning that defendant failed to establish the threshold burden of proper cause or a change of circumstances to reconsider custody.
Change of Circumstance
When seeking to modify a custody or a parenting-time order, the moving party must first establish proper cause or a change of circumstances before the court may proceed to an analysis of whether the requested modification is in the child’s best interests. The threshold showing of proper cause or a change of circumstances must be established by a preponderance of the evidence. If the moving party advances a change-of-circumstances theory, he or she must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.
The trial court identified several reasons for denying defendant’s motion, the most significant of which was that defendant’s allegations mirrored those at issue at the time the last custody order was entered and were, therefore, insufficient to establish defendant’s threshold burden.
Assistance With Custody
If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights. If the divorce or separation process does not turn out like you thought it would, you may not have the custody, visitation or child support you deserve. Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.