Modification of Decision Making Provision of Parenting Plan
In re Marriage of Kaplan, (Div. I,
Unpublished, Filed April 28, 2008).
Facts: The court dissolved the marriage of Ms. Kohls and Mr. Kaplan in 2005. Their agreed parenting plan gave Kaplan and Kohls joint decision-making power on major decisions for their children. The parties acknowledged in this plan that their children needed mental health counseling and that one child needed to be evaluated. In case of decision-making disputes, the parenting plan required "mediation, and if no agreement was reached, then arbitration. Kaplan at first refused and then consented to one child seeing a recommended specialist; however, he later opposed the treatment and stopped paying. Kohls initiated the dispute resolution process. Kaplan refused to arbitrate and then cancelled the mediation the day before it was scheduled. After Kohls rescheduled the mediation, Kaplan informed Kohls that he no longer wanted to mediate or arbitrate his objections. Kohls then petitioner to modify the decision making provisions of the parenting plan. The trial court found that there was a history of disputes before the entry of the parenting plan and that a change of circumstances was not established "when the parties continue to demonstrate the same conflict after the parenting plan as before."
Decision: Kohls alleged that Kaplan abused his joint decision-making power by refusing to agree, involving their attorneys in every matter that comes up, and refusing to participate in mediation and/or arbitration as required by the parenting plan when agreement cannot be otherwise achieved. While Kaplan alleged that the conflicts between the parents before the parenting plan were the same as before, the appellate court disagreed. The court stated that to the extent that the agreed ADR mechanism was not working and there is adverse impact on the children, a substantial change of circumstances may exist to modify the plan. The court remanded the case for a hearing on Ms. Kohls’ petition to modify the joint decision making process of the parenting plan.