In New Hampshire, one basis to modify a permanent parenting plan is to show there is an “agreement of the parties” to make the modification. A 2007 decision from the New Hampshire Supreme Court called LaRue stated such an agreement does not have to be in writing. Instead, it can be oral or even inferred from the parties’ conduct.
The LaRue decision was recently affirmed in a December 20, 2015 Order in the case of Smith v. Barnett. In Smith, a permanent parenting plan allowed the husband parenting time with his child on alternating weekends and one night per week. In April of 2014, eleven years after the permanent parenting plan was implemented, the child began to live with the father full time. The father believed the mother had agreed to this change.
In July 2014, the father filed a petition to modify the parenting plan to reflect this new arrangement. Shortly after filing the petition, the mother insisted that the child return to her care. The father agreed to this request and the terms of the prior parenting plan were re-implemented while the case was pending.
At trial, the father asked for equal parenting time while the mother requested that the prior plan be enforced. The mother denied there was ever an agreement to permanently modify the prior parenting plan. The trial court issued an order granting the father’s request for modification and implementing an equal parenting plan. In support of its order, the trial court wrote that the parties in April 2014 had agreed to modify their prior parenting plan where the child would move in with the father. On appeal, the Supreme Court agreed and held that there was sufficient evidence to show there was an agreement to modify the prior plan based upon the parties’ conduct.
The Smith case raises a number of concerns. First, the trial court implemented a parenting plan that was not originally requested by the party seeking the modification Remember, the father originally requested that the parties’ agreement to allow the child to live with him full time be enforced, but a trial wanted a shared parenting schedule. Second, the parenting plan that was ultimately implemented by the trial court does not bear any resemblance to the parenting plan that the parties purportedly agreed upon; that is, the child would reside primarily with the father. Third, the fact that the mother, withdrew her consent to allowing the child to live with the father, and the father agreed to same, should have been strong evidence that there was no agreement between the parties or, if there was an agreement, it was never intended to permanently modify the parenting plan.
The Smith case demonstrates that, should parties agree upon a modification of an existing parenting plan that agreement should be committed to writing as soon as possible and then promptly filed with the court for approval.
If you have any questions regarding the modification of a parenting plan, please contact one of the attorneys at Hamblett & Kerrigan for a consultation.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].