Preparing to Apply for Modification
Read your current Visitation Order. You need to know what the current visitation schedule is. Take out your copy of the Visitation Order and read it. If you have lost your copy, then contact the court that entered the order. You will need to make copies of the order when you file your motion.
Understand your state law. In most states, changes to visitation will not be made unless there has been a “change in circumstances” and a modification of the visitation rights is in the “best interest of the child.” Before beginning the process of modifying a Visitation Order, sit down and think of what circumstances have changed and why changing visitation will help your child. As the person bringing the petition, the burden is on you to prove both. Common reasons to request a change include: A parent’s work schedule has changed and he or she cannot make scheduled visitations. A parent has moved and the current visitation schedule isn’t working. A parent has not been following the schedule in the Visitation Order. Any other reason that would be in the best interests of the child.
Meet with an attorney. You may want to talk to a lawyer about how to go about modifying your Visitation Order. An experienced attorney can help you make the best possible arguments and can also help navigate you through the court system. If costs are a concern, then realize that some states allow attorneys to offer “unbundled” or “limited scope services.” Under this arrangement, the attorney agrees to handle only some parts of the case and you remain in control of others. For example, you might only use a lawyer for legal advice or to prepare court forms. Using limited scope representation is an effective way to keep your legal bills down. Many courthouses have family law facilitators or self-help centers. The people who work there can offer advice and look over paperwork. Contact your courthouse and ask if there is a self-help center. You may also seek assistance from a legal aid organization. Legal aid organizations offer free or low-cost legal assistance to people in financial need. To find a legal aid organization near you, visit this Locator and enter your state or zip code.
Talk with the other parent. Ideally, you and the other parent can come to an agreement to modify visitation. If you can agree, then you can avoid a contested hearing. Try to talk with the other parent about why the current visitation order isn’t working. Recommend changes to better reflect the current visitation schedule. If you have a joint custody agreement, then the agreement should outline how changes can be made. Follow the procedures for revising visitation. If you cannot reach an agreement, you may be able to ask the court to appoint a mediator. If you can reach an agreement, then draft a revised parenting plan. Along with the parenting plan, you will file a “Stipulation” with the court. Both parents will then sign the stipulation and an order before submitting it to the judge for approval. Ask the court clerk for what other forms you may need to fill out.
Attend mediation. You may request mediation either before or after filing your motion. It will depend on the court, but typically parents have the option of attempting to resolve disputes between themselves using a neutral third-party mediator. You may have gone through the mediation process already when you either got divorced or established the initial custody order. If you and the other parent can reach agreement in mediation, then the mediator will probably help you draft an order for the judge to sign.
Filing a Motion to Modify Visitation
Find the correct court. To modify an existing Visitation Order, you need to go to the court where it was entered. Take out your Visitation Order and read the name of the court that issued it.
Get a form. Most courts now have printed “fill in the blank” forms for family law matters. There should be a petition or motion form for you to fill out. Ask the court clerk for the correct form. It goes by different names in different courts. In Illinois, the form is called a “Petition to Modify.” In California, it is called a “Request for Order.” In Florida, it is called a “Supplemental Petition to Modify Parental Responsibility, Visitation or Parenting Plan/Time-Sharing Schedule and Other Relief.” There may be other ancillary forms you need to fill out. Make sure that the court clerk has given you everything you need.
Complete the forms. Use either a typewriter or print with black ink. Each state’s form requires slightly different information. Typically, you will be asked for the following information: the date of the Visitation Order you want changed a description of the material change in circumstances that warrants modifying the Visitation Order why the modification is in the best interest of the child the proposed new visitation schedule
Sign the form. You may need to sign the form in front of a notary public. Look at the signature block on the form; it will tell you if your signature must be notarized. You can find notaries at most large banks as well as at the courthouse. Be sure to bring acceptable personal identification. A valid driver’s license or passport should be sufficient.
File the form. Once you have completed the form, make several copies. Also make several copies of the Visitation Order that you want modified. Take the completed packet to the court clerk and ask to file. The court clerk should stamp all of your copies. One of those copies must be sent to the other parent. You may have to pay a filing fee, which will vary depending on your state and county. If you cannot afford the fee, ask for a fee waiver form and fill it out.
Request a court date. The clerk will give it to you. There may be space on your petition form to write in this information. Alternately, you may have to fill out a separate Notice of Hearing form. Ask the court clerk.
Serve notice on the other parent. You must give the other parent notice of the motion. Courts will require that you serve notice a certain number of days before the hearing. It is probably best not to wait; instead, serve notice immediately. Acceptable methods of service will vary by court, so ask the court clerk. Generally, you can use the following: Sheriff. If the other parent lives in the same county as the court, then you can typically have the sheriff personally deliver service for a fee. If you can’t afford the fee, then ask for a fee waiver. If the other parent lives in a different county, you typically have to make arrangements with the sheriff in that county. Process server. A professional process server will personally serve notice on the other parent. Generally, process servers cost between $45-75 per service. An adult not a party to the case. Many courts will allow someone 18 or older to personally serve the other parent, so long as they are not a party to the case. By mail. Some courts may allow service by mail. Often, you will need to mail the papers by certified mail, return receipt requested.
File proof of service. Once service has been made, you need to notify the court of that fact. Typically, you do this by filing your proof of service. The court clerk will have the form. Whoever makes service will need to fill out the form and either file it with the court or return it to you to file. Keep a copy for your records.
Attending the Hearing
Arrive early. You should give yourself enough time so that you can find parking, go through security, and still get to the courtroom 15 minutes early. Once you enter the courtroom, you can tell the clerk that you are there and that you are representing yourself.
Explain why you want visitation modified. When the clerk calls your name, step up to the bench and introduce yourself in a calm, clear voice. Hand the judge a copy of your motion. Since you brought the motion, you will go first. Explain why you think the Visitation Order should be modified and be prepared to back up any reasons with specifics. For example, if you have a new job in a different state, then bring a copy of your employment contract.
Fill out an order form. The party that prevails at the hearing is typically tasked with filling out the order form. You may want to do this ahead of time. If the judge’s order differs from what you have typed up, you can make corrections with a pen. Give the order to the other parent to review before submitting it to the clerk for the judge’s signature.
Appeal, if necessary. Should the judge not approve your proposed visitation schedule, then you may want to think about appealing. You cannot appeal simply because you don’t like the decision. Rather, you will need to argue that the judge didn’t understand the facts or that the judged applied the law erroneously. If you take an appeal, then you should seriously consider meeting with an attorney. The rules of appellate practice are complicated, and writing an appellate brief requires experience and skill. Typically, you will need to start the appeals process by filing a Notice of Appeal with the court that ruled against you. You should ask the clerk for the form.
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