Today we’re going to be talking about de facto parenting plans. In general terms, a de facto parenting plan is one that the parents had been following in spite of a previous order. Let’s say that two people get divorced, the court enters a brief parenting plan. It might be for example, they are with dad every weekend and with mom throughout the week. What’ll happen is if sometimes parents will say that a particular parenting plan is not working as intended and when it’s not working as intended, what will happen is, they will move on to something else. They’ll follow a totally different parenting plan as opposed to what is stated in the court order, which was finalized. Let’s say that they move off of that and they’re doing a week on week off parenting schedule.
If you do that, what will happen is you go to a new totally new parenting plan. As a result of that, one of the parents can go back and file for a modification of the divorce order. Now, it’s very important that you take into account some factors that have to be considered when the court decides whether a parenting plan should be modified based on the fact that a parenting plan arrangement. What that means is that the plan has been consistently followed for a certain amount of time, specifically six months. If two people deviate from a parenting plan and they’ve been following this brand new parenting plan for a total of six months, you or your ex can file for the parenting plan to be considered by the court.
In this case, the court will set it for a hearing. Oftentimes though it is within the court’s discretion, the court will go along with a change to the parenting plan. Now what’s really important to do is you show that it’s documented in some way. You can do that by text messages saying “Hey, I’m picking the person up at so-and-so”. If you can document it in some way that you have gone and deviated from the previously entered order, that’s going to go a long ways towards the court. One of the big issues that oftentimes appears in these cases is whether a de facto parenting plan has actually been followed for the past six months.
Sometimes it has not been consistently for six months. If it has not been consistent for six months, then there’s no grounds for modification. The other argument that the person can make is that you deviated for the previously entered parenting plan, but at the same time, even though we deviated from the previously entered parenting plan, it’s not been in any kind of consistent way. It has to be two things. It has to be consistent and it has to be for a period greater than six months for you to make sure that the modification of the divorce order is going to be a slam dunk or pretty close to it. That sums up today’s topic of de facto parenting in a West Virginia Divorce.
