Question: My ex wants to change our visitation schedule without going back to the courts for approval; is this legal?
Can she take me back to court at a later date and say I was not following the visitation order?
Answer: Possibly. You should modify your current order to be safe.
Even if you and your ex-wife agree to modify your parenting time schedule, it is very, very important for you to follow the order modification procedures in your state. In some states, divorce decrees contain a clause that allows the parents to modify the schedule “by mutual agreement.” I have had clients who are satisfied with and rely on those clauses. As an attorney, however, I would seek a court-ordered modification because informal custody agreements between parents are just that –informal. Courts rarely, if ever, enforce them or modify their own orders to reflect them because they have an independent duty to ensure that the current order is in each child’s best interests. Depending on the procedures in your local courts and the temperament of your particular judge, this could range from merely placing a judicial stamp of approval on a written agreement between parents styled as a “amendment number X to divorce decree” to an evidentiary hearing during which one or both of the parents give testimony to explain why the agreement is in each child’s best interests.
In most states, the standard to modify the court’s order is “substantial change in circumstances” or “proper cause,” although your local courts and your particular judge may call it something else. The burden may range from a preponderance of the evidence to clear and convincing evidence or greater, depending on how established each child’s current home is and what percentage of custodial time each parent has. The touchstone of this standard is a change since the last order sufficient to modify the order to better serve your children’s best interests. The analysis is highly fact-intensive. Parents who agree are a favorable factor, but only one factor to consider.
If you do decide to modify your parenting time schedule, be sure to write your new agreement in detail, date it and sign it with your ex-wife. A written agreement will prove that you agreed to the modification.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Oregon. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if for additional information and legal representation. Thank you for submitting a question to Cordell & Cordell, P.C.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.