What Can A Parent Who Disagrees With A Modification Request Do To Stop The Petition, Or To File An Appeal If There’s An Unfavorable Outcome?

Key Takeaways:

• If you disagree with a modification request, you can Respond by filing an Answer or a Motion to Dismiss.
• If a modification has already been granted by the Court, it is generally difficult—though not impossible—to appeal it.
• It is important for parents to try to avoid unnecessary modification requests. Family Court judges can see how many modification requests have been filed and rejected as insufficient. If they see lots of unnecessary requests, they are less likely to take future requests seriously.
• You do not have to be friends with your co-parent. You simply have to remain respectful, cooperative, and focused on the best interests of your child.
• There are certain issues that parents should agree on (i.e., vaccines, school choice), but most co-parents can reach compromises on most issues.

If you are a parent who disagrees with a modification request, don’t worry: you will get to participate in the process.

When a parent files a petition to request modification, their co-parent is going receive official Notice that the modification was filed. At that point, they have a few options:

1. File a Response (Answer): The disagreeing co-parent can respond and tell the Court that they don’t think a modification is justified and explain why actually, the circumstances have not changed significantly.

2. File a Motion to Dismiss: If there has not even been enough of a change of circumstances to justify the petition being filed in the first place, which does happen, the disagreeing co-parent can file a Motion to Dismiss with the Court, which essentially says, “They haven’t recited any kind of changed circumstances to justify this request”. That’s the quickest way to get a Petition for modification dismissed. It should be noted that if the Motion to Dismiss isn’t granted, then the other party gets to respond.

After a hearing, if the Court decides something that a parent isn’t happy with, there is an appeal process. A disagreeing parent would be appealing to the Arizona Court of Appeals. I can’t really speak about the success of appeals, because I’m not an appellate attorney. I will say that those types of decisions aren’t typically successful on appeal.

The Trial Courts are given wide latitude, and a lot of times, the Court of Appeals will defer to them. They will often say, “The Trial Court is the Court who actually saw these parties, who heard them testify at trial, and it is within their discretion to decide that this modification was either necessary or not necessary.”

So, unfortunately, appeals on custody modification cases are difficult. As such, it’s difficult to seek recourse if you don’t get the outcome you want in Superior Court.

Why Is It Important That Parents Try Their Best To Avoid Unnecessary Modification Requests If Possible?

It is important that parents try to avoid unnecessary modification requests for several reasons, many of which have to do with how the Court functions.

Within around the last five years, the Court has been putting Petitions to Modify under a bit more of a microscope. That is, the Court has been examining these Petitions more closely to ensure that they meet the standard of a “significant change of circumstances” to justify the modification request.

I once spoke with a client who’d tried to file three different modification requests on her own, and all three of them had been rejected by the Court. What she really needed was help drafting the requests to explain what the change of circumstances were in her case. However, you can see from situations like hers that the Court is not going to read between the lines. It is essential to be entirely clear and to make your case in a compelling fashion, because the Court will not fill in the blanks for you.

An additional issue is that in Family Court, you are typically assigned a judge and will keep that judge for at least two years. Family Court tends to rotate the judges every two or so years but doesn’t always do so. The point remains that you’re going to have the same judge for a while, and you don’t want to piss them off with a lot of unnecessary requests.

Judges will be able to look at the docket and tell what the history of the case has been, if they don’t remember off-hand. They can scroll down on the docket, and they can see what the history of filings for the case has looked like. If there’s filing and filings, offering one side or back and forth and not appearing, the judge at that point is likely to assume that it’s a litigious appearance.

In any case, the judge is going to be unhappy to see anything that isn’t actually a serious issue brought before them in such a case, specifically one that seriously affects the welfare of the child.

Do I Have To Like My Child’s Other Parent?  Do We Have To Be Friends In Order To Provide The Stability A Child Needs?

It is not necessary to “like” each other very much, or even at all, to be good co-parents.

I have clients that don’t particularly like each other personally, but still manage to function very well as excellent co-parents.

Obviously, most children appreciate at least the appearance of a friendly relationship between their parents, but you don’t really have to be “friends” with your co-parent simply for the sake of your children.

It is far more important to be able to understand that your child needs parents that can at least look and behave like mature adults, and deal with each other reasonably and respectfully, without being rude, mean, or angry.

Your behavior toward your co-parent doesn’t have to be overly friendly if that’s not what feels right. If forcing friendliness is going to cause additional problems, you do not have to do it. Rather, I think it’s probably the biggest help to a child in a divorce or separation to see their parents working together to protect the child rather than putting them in the middle of two sides.

Are There Components Of Co-Parenting That You Think Parents Should Agree On, Or Should At Least Be Close To Agreement On?

I do believe there are certain components of co-parenting that parents have to come to some sense of agreement on, for practical purposes.

Let’s use a scenario that has been occurring for myself and colleagues recently. The main issue at hand is vaccines. One parent is a vaccine denier, and the other believes that children should be vaccinated. The child is young, so there are vaccines they should have technically received by this age and have not been able to receive because of the vaccine-denying parent.

What’s more than likely to happen, eventually, is that the Court is going to fall on the side of healthcare and science.

Cases like this can be very lengthy and expensive to take to trial. So, I would say that vaccines are something parents should try their best to come to an agreement on

There are other issues that may seem like co-parents have to agree on but can actually be worked around pretty effectively—with the right co-parents. Religion is one of these issues. With the right co-parents, disagreements about religion can be worked around. With the wrong co-parents, disagreements about religion can become big issues.

For example, I have clients who take their child to two different churches. They came to an agreement that this is how they would handle their different religious beliefs, and the child seemed to be okay with it all.

Another issue I would say is helpful to agree on is school choice—that is, which school the child is going to go to. This can cause major issues if there’s a disagreement, especially when it comes to location.

One of Arizona’s relocation statutes says that you don’t have to notify your co-parent if you’re going to be relocating more than 100 miles, but such a move would have a significant effect on a child’s schedule, especially if the parties share equal time. I would think it would be extremely helpful if the parents could reach some agreement on an issue this important, especially if such a major long-distance move is involved.

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