Author Topic: What is the basic Legal Process for Motion To Modify?  (Read 7930 times)

Shan1

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What is the basic Legal Process for Motion To Modify?
« on: October 24, 2014, 10:26:57 AM »
We are working with a lawyer and she has served the kid's Mom with a Motion to Modify custody and parenting time.  Our lawyer also wrote up a request for a temporary order (kid's Mom unilaterally drastically changed the parenting plan from 50-50 to 80-20 for no reason, except presumably wanting more child support). 

We are asking for the 50-50 back (that has been in place for over 5 years). 

The lawyer said she would set a hearing date for the temporary orders.  During this hearing, would the motion to modify also be addressed or would that be a separate hearing?  And, generally, what is the legal process?  We are in Johnson County, KS.

My understanding is that there will be a hearing where both parents will be present, and lawyers and the judge will make a decision about the temp. orders.  The Mom refused mediation so I'm sure they will first be ordered to do that.  What happens after mediation if they can't come to an agreement?  Is there another hearing or is a court date set?

I'm just trying to understand the general over-all process and how many months it might take to get through this to where a judge makes a final decision.  I know there can be unexpected things along the way. 

Thank you.

KTM

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Re: What is the basic Legal Process for Motion To Modify?
« Reply #1 on: October 27, 2014, 08:17:42 AM »
Custody and Parenting time are two separate issues. Your attorney would be able to give you the best estimate on time and answer your questions based upon knowledge of your specific case, your relationship with your ex and your children's circumstances.

Guru

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Re: What is the basic Legal Process for Motion To Modify?
« Reply #2 on: October 27, 2014, 05:55:14 PM »
I think a lot of your questions depend on the status of the case.
  • is there already a custody order for 80/20 parenting time or 50/50 or something else?
  • where do the parents live in relation to each other?
  • how old are the kids?
  • are both parents sane and considerate of each other?
Usually both motions like this would be heard at the same time to conserve the court's time.  This sounds more like a change of custody which will require a showing that a change in circumstances has occurred.  Then mediation or case management, then set a date for evidentiary hearing/trial along with prehearing conferences, then evidentiary hearing.  All this takes a while and is very costly.

Shan1

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Re: What is the basic Legal Process for Motion To Modify?
« Reply #3 on: October 27, 2014, 10:07:18 PM »
   Guru,

To answer your questions,

1.  There is an order from 2010 that has an 80/20 parenting plan in it.  It was never used and for over a year the 80/20 was the opposite with the non-primary parent doing 80% of the childcare.  The past two years have been 50-50.

2.  The parents are close (10 min drive) and non-residential parent is in the kid's school district and is still in the "marital house"
3.  Kids are 6 and 9
4.  Both parents work pretty well together- even now they are coming to agreements about Holiday schedules. 

The only conflict is that Mom says kids need to sleep at her house every week night and Dad says they don't because they never have.  The kids do excellently in school, have friends, etc... They go to Dad's house after school until bed time half of the time and are just dropped off for sleeping....

We are waiting for the lawyer to set a hearing date and even that seems like it's taking forever!

The lawyer has advised going for full physical custody and then hoping Mom will compromise in mediation with shared physical custody and 50-50 parenting plan (which is basically what's been done for years).



Guru

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Re: What is the basic Legal Process for Motion To Modify?
« Reply #4 on: October 28, 2014, 12:34:14 PM »
Sounds to me like shared custody would work well in this case.  If the parents live that close together and can both get the kids to school, I doubt there's any good reason to make them sleep at mom's during the week.  So you think mom requires them to sleep at her house just to make sure her child support stays as high as possible?  Do the kids have any problem with sleeping at dad's house half the time?

There is also another approach to calculating parenting time which is used by attorneys in KS and in other states.  That is the hours method.  Hours that the kids spend sleeping or in school does not count.  So when you add up all that time, and you can demonstrate the time is already split, maybe that's enough.

I agree with your attorney requesting not "full" custody but "residential" custody.  This is pretty typical in court.  It's a psychological effect to cause the other parent to see how much they stand to lose if the judge does not side with them.  In some counties in KS there is something called limited case management which is like case management except a recommendation is given.  Maybe this would work for you guys.  But it really sounds like a hearing might be best.  I would imagine before the hearing even comes up an agreement will be made which will help both parties.

KTM

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Re: What is the basic Legal Process for Motion To Modify?
« Reply #5 on: October 29, 2014, 10:46:21 AM »
Case management will strive for the parties to agree. When the parties do not agree they will choses an option that is dissatisfactory to both parties and potentially unfavorable for your child(ren). They typically will not choose a side and can/will confer with the Judge without either attorney or you being present. That is too much power to give away if you can avoid it. The Court will adopt the Case Managers recommendations in full unless you have a hearing in Court with evidence to challenge them. Even then, the Court typically will adopt the Case Managers recommendations.

I recommend staying out of Case management.