You need a modification - your parenting plan is not working. Changing up the routine would be in your child's best interest. Surely the court will care that your child is unhappy & that the schedule is not working. Maybe but, we have some rules and procedures we have to follow if you want to be successful.
My client contacted me 6 months after he was awarded 40% of the timesharing with his daughter. He told me he wasn't happy. He wanted more time. His daughter, 5, also wanted to stay with him more. My question to him, what has changed from 6 months ago? His reply, nothing really ... same job, same schedule, no new partners. Everything was pretty much the same. My advice? Don't take on this battle now, you will likely lose and will cost you lots of money.
Did I not care about his daughter, about her best interest? Sure I do, but the Court do not - at least not yet. Before the Court begins to consider your child's best interest, they first must decide whether there has been a material, unanticipated, substantial and permanent change in circumstance (for now let's call this a substantial change) since the time of the last order. In this case, it just was not there.
When it comes to parenting plans Courts favor stability for kids. Unless there has been a substantial change since the time of the last order, they are not willing to to enter a modification of a parenting plan. They never even get to the question of what is in the child's best interest.
What qualifies as a substanital change is an entirely different question. This is subjective, and the answer can vary from Judge to Judge. For example, we have been both successful and we have failed with the argument that the parent's failure to follow the original plan is in fact a substantial change. For example, you have a 50/50 timesharing schedule, but in reality, one parent exercises their timesharing 30% of the time. Some Judges see this as one parent's failure to follow the order and therefore a substanital change. Other judges say "how nice of the other parent to give up some of his/her time, but that is not a substantial change".
My point, whether or there has been a material, unanticipated, substantial and permanent change in circumstance is a case specific question and you MUST chat with an experienced attorney to decide whether or not your case could be successful. If it can, then that same attorney can help you evaluate whether or not you can prove what is in your child's best interest or the likelihood of reaching a compromise.
To hear what our attorney Leisa Wintz has to say about modifications: click here.