During the course of a litigation where children are involved, the parties will often come to an agreement as to custody and parenting time. By settling on this understandably emotional issue, the parties avoid having to go to trial, where the trial judge would have decided for them who has custody and what the parenting time schedule will be. Depending on when settlement occurs during the course of the litigation, the time and expense of obtaining a custody evaluation, which involves the children in the process as well, may also be avoided.
However, oftentimes after settling the issue and coming to an agreement, one or both parents will change their minds about what they just entered into for whatever the reason may be. He or she wants to change the agreement or simple rescind on its terms. We are actually involved in a litigation where the parties agreed to a holiday parenting time schedule with a parenting coordinator, the Court subsequently entered the terms of the Agreement in an Order, and the husband is still trying to back away from the agreement, having just filed a motion with the Court and leaving our client with no choice but to incur legal fees to respond.
The question then becomes, can they change the schedule so easily if they want to? The simple answer is no. A parent seeking a modification of a custody and parenting time agreement must show changed circumstances from when the agreement was made that the agreement is now not in the best interests of the children.
The Appellate Division just recently addressed this issue in Dukes v. Fritz, where the father sought to essentially undo the custody and parenting time agreement a mere 2 days after the trial court accepted what was entered into by the parties during mediation. The father’s stated basis for doing so was that the arrangement was "not the best, or most fair arrangements for me or for my children." He also relied on the fact that he lacked housing when the agreement was entered and at the time of trial he had a fully renovated home. Despite his arguments, however, the Appellate Division affirmed the trial court’s conclusion that the father had simply changed his mind and no longer wanted to follow the arrangement that he and the mother had agreed to.
The father’s attempt to back away from the agreement in Fritz is all too common, and such applications to modify often result in legal fees that could otherwise be avoided if the parties would simply stick by what they agreed to. As shown here, the standard for modification of an agreement is more than merely one party changing his or her mind, which is why dad was denied in this instance. Rather, just as with support issues, there must be a showing of a change of circumstances.