Parents are required to make arrangements in the best interest of their minor child after their relationship ends. Those agreements can be recorded in a parenting plan. In that agreement, parents can agree on how the care and contact arrangement with the other parent will be completed. When can a parent change an existing arrangement?

Parents determine

A care arrangement is access between a child and a parent or other caregiver. Parents can draft and modify an agreement together or with the help of a mediator or attorney, for example. If parents choose to modify agreements together, they also determine together what circumstances they deem relevant for that modification.

The judge decides

Sometimes a modification is desired, but parents are unable to reach agreements together. A parent may then consider petitioning the court with the help of an attorney. The court may modify an arrangement agreed upon between parents and a previous court decision if circumstances have changed or if incorrect or incomplete information was relied upon in making the decision.

- Circumstances not changed

Modified circumstances are changes in the situation from the old situation. If the court finds that the circumstances have not changed, then the care arrangement will not be modified. If parents both request a change in the care arrangement, then the court will assume that there has been a change in circumstances.[1] The care arrangements requested by parents are then reviewed.

- What are (specific serious) changed circumstances?

Even if the court concludes that there are changed circumstances, that does not automatically mean a change in access. The changed circumstance must significantly affect the care arrangement and be in the best interest of the child. If the change is not so insurmountable that access must change, then that circumstance does not result in a change in the care arrangement. An example is a move of a small number of miles.

Some of the changes that may trigger changes to an existing regulation are:

• • a different need of the child and/or a parent, for example, when a child starts elementary school or goes to high school. The mere fact that a child becomes a parent does not produce a relevant change.
  • changed financial circumstances, for example, the incurrence of debt;
  • changed circumstances of parents, such as remarriage and moving in with partner, a move that increased the travel distance between parents' homes, and mental health issues.

In any case, the change in the situation must be such that it is no longer in the child's best interest to maintain the existing situation. A judge assesses this on a case-by-case basis based on the arguments presented by parents. In doing so, the judge considers the interests of the child. The judge must also consider the interests of the parents in making his or her decision. Sometimes a parent's interest may outweigh the child's interest.

- Provisions in parenting plans

Some parenting plans include when a care arrangement can be modified. Other agreements state that the circumstances must be specific and weighty. The latter adds weight to the judicial test. The changed circumstance must have a large(er) impact than average.

Reasons other than changed circumstances

The court may also modify a visitation arrangement if:
a. access would cause serious harm to the child's mental or physical development, or
b. the parent or the person in a close personal relationship to the child must be deemed manifestly unfit or manifestly incapable of contact, or
c. the child who is twelve years of age or older has, on interrogation, shown serious objections to contact with his parent or with the person with whom he is in a close personal relationship, or
d. contact is otherwise contrary to the weighty interests of the child.

Are you seeking a care arrangement modification and want information about your options? Please feel free to contact us.

[1] Zie onder meer: Hof ‘s-Hertogenbosch 20 januari 2022, ECLI:NL:GHSHE:2022:137, r.o. 3.13; Hof Arnhem-Leeuwarden 18 oktober 2022, ECLI:NL:GHARL:2022:8947, r.o. 5.2; Rechtbank Zeeland-West-Brabant 17 maart 2023, ECLI:NL:RBZWB:2023:5436, r.o. 4.3.