Custody

Filing a motion to amend
If you have a parenting plan order already in place, either parent can file a motion to amend the order to make changes to it. Generally, you can only ask to have a final parenting plan order amended if:

• the amendment is necessary to serve the best interest of the child; and
• there is a change in the circumstances of the child that is based upon:
  • facts that have come up since the prior plan; or
  • facts that were unknown to the judge at the time the prior plan was ordered.¹

When considering how a proposed change will affect the child, the judge will consider:

• the potential impact of the change on the factors listed in How will a judge make a decision about a parenting plan (custody)?; and
• one or more of the following:
  • whether the parents agree to the proposed change to the parenting plan;
  • whether the child has been included (integrated) in the family of the petitioner with the consent of the parents;
  • whether the child wants the proposed change - but this only will be considered when the child is 14 years of age or older; or
  • whether one parent has willfully and consistently:
    • refused to allow the child to have any contact with the other parent; or
    • attempted to deny contact between the child and the other parent or make contact difficult.¹ If a parent does either of these things, the judge will assume that the parent was not acting in the child’s best interests.²

Note: If a parent files to amend the parenting plan without first making a good faith effort to follow it or to use the dispute resolution method laid out in the plan, the judge will assume that the parent is acting in a vengeful or harmful manner. However, the parent can offer evidence to try to convince the judge that s/he did not file to get revenge or harm the other parent. This does not apply to the “objection” option explained below.³

Filing an objection
You can file an “objection” to the parenting plan if the other parent or anyone living with that parent gets convicted of any of the following crimes:

• deliberate homicide;
• mitigated deliberate homicide;
• sexual assault;
• sexual intercourse without consent;
• deviate sexual conduct with an animal or dead human body;
• incest;
• child sex trafficking;
• endangering the welfare of children;
• partner or family member assault;
• sexual abuse of children; and
• strangulation of a partner or family member.⁴

After you file the objection, the other parent has 21 days to respond. If s/he doesn’t respond, his/her parenting rights are suspended until the judge says otherwise. If the parent does respond to the objection, then a hearing on the issue will be set within 30 days of the parent’s response.⁴

¹ R.C.M. § 40-4-219(1)(a)
² R.C.M. § 40-4-219(3)
³ R.C.M. § 40-4-212(4)(b)
⁴ R.C.M. § 40-4-219(8)