section sixty hand dealing with modification of custody rights in this case we had joint parenting that was agreed to by the parties it was a arrangement with e requires for a modification that the person require requesting modification proof by clear and convincing evidence that a modification is it's interesting that section six ten contains the clear convincing language in the same clause in other words it's the same clear and convincing a pluggable to the change in circumstances as it is the best interest in so at the outset we take exception with courts find when we first found that there had been change in circumstances he then indicates that the parity fact that is in his opinion the parties when i'd be able to cooperate but if we analyze the evidence on that fact when it came down to further was the court's quarrel  dissatisfaction with the fact that the parties had evolved their communication to electronic means texts and emails century the evidence here on the record is that the yelling at her so she unilaterally determine there from here on in we're not going to be talking by telephone everything has to be a by email or text in other words electronically it's interesting that both  regular it's all the way up until the day before of the conclusion of the trial when these parties text each other e mail concerning a situation involving one of the children i think was the son specifically up in extra curricular activity is there is or is where here are these parties children were fairly active they were involved softball and there listening to these so there was communication back and forth between the parties with regard to that including as i say up until the day before trial the court in its finding states you know i expect you to folks talk he had mean by that to talk face to face or at least by telephone that's really doesn't because that opinion does not anywhere indicate that parties have to communicate personally or via telephone it's a states as we all know that are very hard to cooperate there's no question about that they are required to cooperate the statute is is clear on that so the question becomes is the fact that these parties were communicating electronically rather than by telephone is that a sufficient  practices whatever they were able to work together our mother on the other hand simply mix a state and maybe maybe two states but next simply makes a statement there well we were unable to cooperate but there's just simply no evidence to support that state as the person having the burden of proof mother it was incumbent upon mother we fully come in and provide communicate or believe rather than by electronic means well then i said i guess then that the proper was correct but on the issue of cooperation other was required we believe to come in and  what areas that these parties were in the un able to cooperate together on matters of fact and the children and that is very important because as we know the statute dealing with joint custody and joint parenting provides that the issue of cooperation is a pleasurable only in matters that directly a fact that's a quote from the statute that directly affect the joint parenting a child further in this is a separate clause in the statute this court shall not consider the inability of the parents to cooperate in matters that do not a fact we believe it is certainly an indication by the legislature that they didn't want animosity or issues between the parents to be a roadblock to a joint parenting and as i and having been divorced to magically on the son become best friends again if it's unrealistic to expect that that's certainly not what what's happened in this case but the statute the legislation we believe was making a point that before we're going to throw out a joint parenting agree we have to be sure that these parties are unable to cooperate on matters and children parent animosity between the parties we think is not sufficient that's what legislation lose that joint parenting agreement had to be terminated eyes and the fact that they were not communicating directly again really from our perspective it really doesn't make a difference whether the mother allowed that that wouldn't the a party could have an all jury or motive and unilaterally of sabotage is going parroting agreement by refusing to cooperate it certainly appears to us to be the believe modification of custody i've cited all the facts in the brief to support our position that there simply wasn't a change in circumstances the other the parties had moved the children's friends were no different really than they  between her and her mother not between her and her father that's why we believe she took actually house when she did not notify mr grove in advance of this presumably because anything in there in the testimony is clear from his perspective as well as all of the the witnesses that testified on behalf of the father even the witness a mother and father well it is a change in circumstances i suppose it could be but it's not a change in circumstances there would we believe children's lives that they were unhappy certainly we would expect such a thing is that these children were so unhappy that they had to have things changed you would  we have the children's testimony but we believe bad two things about that testimony one it's suspect we will hear what the con is if you look carefully at their testimony quoting both of them saying use the words they  our position that it's just simply not corroborate this is not evidence here that supports these children's shows testimony so the bottom line is we just don't have believe that on the unequivocal that these children's daily lives that interaction with fathers are and not changed in some ways thank you i have additional communication that it was electronic per se but the fact that they were able to discuss the issues and make joint decisions they were two parents operating independently specifically stated by the t there was testimony mother testified that she said no four on any issues he didn't go to the doctor's appointments i believe father's own witness testified that she isn't really the essential point is choosing counseling there it is affecting her that's a significant effect on her emotional state the parents ought to cooperate and the counseling the school that's a major life she said that she was afraid of him prior to the dissolution but she felt that when she was in the home she was a buffer act as a buffer for the children where she he would take his anger out on her and not the children she feels that i testimony was is the reason she didn't also tell was because she thought he might be the cause and he didn't want to make them angry because it would affect their ability to joint parent in the joint sessions so if you look at the facts maybe it's not simply about the children under five you know but spills over into their discussions about the children and it affects their ability to parent if they can't make joint decisions about going to the doctor's appointments knowing what's going on with the children going to counseling going to the e recall the questions that i ask those now saw he had a party and can unilaterally refuse to cooperate doesn't that then allow  evidence of his failure cooperate because i can see instances where there might be at the time of the of formation of the joint parenting agreement of both parties spoke mother and father wanting to participate in a joint parenting agreement later one saying no i don't like this i want to go for it all i want sole custody the other one that you have been doing everything appropriately out of the joint parenting agreement and it could be unilaterally exploited by a single constantly bouncing children back and forth between a household could be an abuse of discretion joint parenting it truly has to be cooperation of a high degree that's that's what the authorities if it didn't happen at the time maybe one parent sabotaging the work but it never existed circumstances that's clear and convincing evidence i'm occupation is necessary for the children clear events their way through the factors because there was no trial there was equal time between the parents at the time so there was no that certainly could be a factor in who was awarded custody if one parent is purposely being difficult to torpedo an agreement that's something a trial court could consider and whether that person opt to have a student whether that's in the best interest and  going through those factors the situation here is that they never did walk and the communication it would be one thing if there was evidence of proper court communication was that there was a two way street discussion among right instead what we have are two parties dictating to each other the so it's not necessarily that ok they don't talk face to face there could be a situation in theory where parents are not able to talk face to face enjoy parenting it still be appropriate in the truck court never said that by itself the means of communication is the pro watched parties enter witnesses testified he is in the best position to figure out what's really going on the children maybe they make statements but to sit there question the children about specific questions what children couldn't line themselves i said something particular so the appellate where he was doing everything right he was following the authority which says we asked the children you should try into the details you don't want them to think it's their fault even said when he was making th and part of the reason for that is that there was no it was a tight at that point he said it's ok it's done it's out you guys to cooperate fully parenting is going on now you have to decide who's going to have custody that moment he had done fifty fifty even but the time it is in the best interest of the children and to say that it's an abuse of discretion change from where the initial starting point there was cooperation to the point of the filing where there is evidence that there's a failure to cooperate unilateral or not that's question of course and it's it is a fish if indeed there is evidence to support find out you're to cooperate again the the the crux of our argument here that the relationship between mother and father had not changed from the time of the divorce up until the time of trial there was some animosity there but in terms of the question of cooperation on matters that directly affect the children the evidence was completely lacking and and  answer to your question yes the mother who has the burden of proof here came in by and by clear and convincing evidence convince this judge that there was a change in circumstances evidence of the failure to cooperate in the court was required by section six ten to make specific findings of fact this of or a modification of custody his findings are they were talking verbal there's no other findings that he makes unfortunately to attempt to show a lack of or a failure to cooperate because there wasn't evidence of them mother had the burden of proof to come in and demonstrate by example why tell us why you believe that you're not able to cooperate she did do that fine he thinks it was in the best interest of the children but children never demonstrated any evidence or manifestation that they were unhappy with the answer yet it was mother who was required to come in and show th will not should not consider evidence of failure to cooperate simply on all statements from one party in this case it was the mother that's exactly what we have here i'm saying you can't cooperate there's no evidence to support this