Changing the Parenting Plan Without the Court
It is common for parents to follow a different Parenting Plan than their ‘official’ Court ordered Plan. As long as both parents agree, this approach is preferred by judges, attorneys, and policy makers. Judges and lawyers are there for parents who cannot agree on what is best for their children.
Agree to Change the Parenting Plan
Even though a Parenting Plan may be in place, the parents are always free to agree to do something other than what the Court ordered. A parental agreement is always Plan A. When two parents agree to modify or change the arrangement, that takes precedence over the Parenting Plan. But if the parents can’t agree on what should happen or they disagree with a proposed change, the Parenting Plan determines what should happen. There is negligible risk in agreeing to small modifications to the parenting plan without going to court.
You Can Change Time but Not Money
Still, when you go off script, it can lead to some potential legal issues. The biggest issue in these situations is child support. Parents can change their Parenting Plan by agreement between themselves. But they can’t do the same for child support.
Risks of Changing the Primary Parent on Your Own
Parents often decide one child should live with one parent most of the time. And sometimes, parents agree to change who the child primarily lives with. If, for example, the Parenting Plan states that child should live with mom during the week and dad during the weekend and the parents decide to reverse that living arrangement, that is their right. But, in that situation, dad may still be under a Court order to pay child support that is based on Mom having the child more of the time. dad may think to himself the child is with me—I don’t need to pay child support anymore. That can lead to severe financial disaster.
Child Support Arrears
Let’s say, for example, dad is ordered to pay child support for $500/month and the child primarily lives with mom. They both agree to change the Parenting Plan and let the child live primarily with dad. So, he lives with and cares for the child for five years and since he is the primary parent, he doesn’t pay any child support. Then, dad’s girlfriend moves in and his relationship with mom sours. She meets with an attorney and tells them dad hasn’t been paying child support, and he now owes $30,000.00 plus interest (which accrues 10% annually).
Even though he is far from a deadbeat, dad could be in trouble because each child support payments “vests as each installment falls due.” A.R.S. § 25-503(I). And it vests as a final judgment. Id. That means Dad cannot retroactively challenge the child support amount.
Now, not all is lost for Dad. He will have an “affirmative defense” to the enforcement that Mother voluntarily relinquished the child to him. A.R.S. § 25-503(J). But there is a substantial risk the Court may still order him to pay mom the full amount.
When There is a Big Change to the Parenting Plan – Legally Modify
If a scheduling change or living arrangement would substantially change the child support order, it should be modified in Court. The parents can get together and calculate what child support should be and submit a Modification of Child Support by Agreement to the Court. The parties can also agree that neither party shall pay support to the other. Making that a Court order reduces the risk of a nightmare scenario. It would be even better to update the Parenting Plan at the same time and let the judge sign that as a new order of the Court.