Changing a Parenting or Contact Order
Sometimes one or both parents want to change an existing parenting arrangement. If there is a contact order or a person other than a parent has parenting time with a child this can also be changed. The process for making these changes depends on whether the arrangement was by agreement or court order.
Agreements about parenting, whether they are between the parents only or involve another person such as a grandparent, can be changed by agreement at any time. If the parties do not agree any of them can apply to court for a parenting order or a contact order.
Changing a Parenting Order
A court order can only be changed by the court. If both parents agree on the change they can ask the court to change the order by consent. When parents cannot reach an agreement about a change to a parenting order, either one can ask the court to change the existing order.
Who Can Ask to Change a Parenting Order?
In divorce cases either of the spouses or former spouses can apply to change a parenting order. Someone who is not a spouse can apply to change a parenting order if they are:
- one of the child’s parents
- someone who stands in the place of a parent
- someone who intends to stand in the place of a parent
These people need leave from the court to apply for a change unless they are a party to the current order.
In non-divorce cases a parent or any other person who, in the court’s opinion, has a sufficient interest in the child can apply to change a parenting order. In these cases parents specifically include a parent by adoption, the spouse of a birth parent, where the child was conceived by artificial insemination or some other form of assisted reproduction, and people who become parents as the result of a surrogacy agreement. For more information see Who are Parents?
When Can A Change to a Parenting Order be Requested?
The courts will not change a parenting order unless the party asking for a change can show that there has been a significant change that affects the care of the child. The courts call this a material change. There must be a fundamental change in the child’s needs or in the parents’ ability to meet those needs since the order was made. A parent cannot ask the court to change an order just because they do not agree with the original order. There must be a change of circumstances that would have resulted in a different order if they had existed at the time of the original order.
Things like one party re-marrying or entering into a new relationship are not automatically grounds for asking for a change in a parenting order. The parent asking for the change would have to show that the new relationship significantly affected the child’s care. Changes that would have been anticipated when the order was made are not considered material changes. For example, a child getting older may not by itself be a significant change.
Certain things are automatically considered a significant change. A divorced person’s critical or terminal illness is a significant change and the court must vary parenting time based on this.
Relocation is considered a significant change in divorce cases but a court refusing a relocation application is not itself a significant change.
If the court decides to make a new parenting order the court can make any order that they could have made when the application for a parenting order was made.
What Does the Court Consider?
Once the party asking for a different order has shown that there is a change that affects the care of the child, the court will then be guided by the best interests of the child in deciding whether to make the requested change. The party asking for a change must show that the requested change is in the best interests of the child. The court will consider the same factors that they considered when the parenting order was first made.
If the parenting order is changed the court can also change any contact order to take into account the change in the parenting arrangement.
Sometimes after a court has made a parenting order one parent may decide to move. Depending on the type of move there are different notice requirements and factors the court will consider when a move is proposed.