Divorce

DEVELOPING A PARENTING PLAN

COMPONENTS OF YOUR PARENTING PLAN

Ideally, you and your spouse should work together to agree on a post-separation/post-divorce parenting plan for your children. A parenting plan is an agreement between you and your spouse dealing with the raising of your children. Once you and your spouse work out the details, your attorneys will write up the plan for you and your spouse to sign. The court will make it part of your divorce decree. Parenting plans can vary in complexity from a single line to 20 pages or more depending on how much detail is included.

If you and your spouse, even with help from your attorneys, are unable to agree on a parenting plan, you can go to court and the judge will impose a plan on you. Litigating parenting issues should always be a last resort. It is emotionally and financially draining and very hard on the children. See Leaving your parenting plan up to the judge, below.

Sometimes, a mediator can help you and your spouse reach an agreement. Mediation is a good idea to try before resorting to the court. In fact, many judges will require you to try to reach an agreement through mediation before they will hear your case. See Using mediation to develop a parenting plan, below.

Post-divorce parenting has two distinct components that need to be addressed in your parenting plan:

• Decision-making (also known as legal custody).
• Time-sharing (also known as physical custody and visitation).

Decision making, as the term implies, refers to the right to make major decisions about your children. It includes such things as where the children will go to school, what religion the children will be raised in, and what type of medical treatment the children will have.

Parents have a number of choices in how they want to make decisions:

1. Jointly with both agreeing (known as “joint legal custody”)—which means joint discussion, cooperation, and conferring before any decision is made; or
2. Jointly with both agreeing and if agreement cannot be reached after their best good faith efforts, designating one parent who will have the final word; or
3. Individually with one parent making all the decisions (known as “sole legal custody”) or
4. By dividing up a list of decisions and designating one or the other parent to make the decision alone; or
5. Designating a third person as the person with the final word or sole responsibility for making the decision.

Joint decision-making or joint legal custody works best when the parents are able to cooperate and communicate effectively. Parents often agree to joint legal custody. Then, as time goes on, one parent actually makes all or most of the decisions, typically the parent with whom the child primarily resides.

Time-sharing, as the term implies, has to do with how the parents share the child’s time. It refers to where the child will live and who will be providing the hands-on care and supervision. There are an infinite number of ways parents can agree to time-share. Parents can adopt an equal time-sharing arrangement if they wish, such as alternating weeks, or months, or splitting the week, for example. Equal time-sharing agreements typically work only when the parents live close to each other so that the child’s schooling is not disturbed and when both parents are able to make the time commitment and have the resources to provide two adequate homes.

The time-sharing arrangement is completely separate from the decision-making arrangement. Just because parents share decision-making jointly, they do not need to have equal parenting time. Regardless of the decision-making arrangement, it is still probably more common for the child to have a home base with one parent (who may be referred to as the residential parent or primary parent) and spend time with the other parent on weekends and during school vacations.

USING MEDIATION TO DEVELOP A PARENTING PLAN

WHAT IS MEDIATION?

A high percentage of spouses who are unable to agree on a parenting plan by themselves are able to reach an agreement through mediation. During mediation, a neutral person (the mediator) will meet with you and your spouse and attempt to help you reach an agreement. Your lawyers may or may not attend.

A mediator is a person who has completed a significant amount of training and has experience and expertise in the family law field. Some mediators are attorneys; some are mental health professionals. A mediator who is a therapist can be of great assistance when the parents have a high conflict relationship or one parent is impaired (e.g., has a mental or physical illness or substance abuse problem).

You will usually have to attend at least two to three one to two-hour sessions to achieve success.

In some courts, mediation is required whenever parents cannot agree. The courts encourage parents to resolve parenting issues between themselves, and, frankly, that is a good idea.

There can never be too much emphasis on attempts to resolve custody and parenting issues without a fight in the courtroom. Studies show that parents are much more likely to comply with agreements that they have had a role in constructing, than terms imposed by a judge.

PREPARING FOR MEDIATION

Before your case goes to mediation, your attorney should spend some time acquainting you with the mediation process. He or she may role-play the mediation with you to give you a sense of what to expect and how to react.

For the mediation to be successful, you must have realistic expectations. Do not expect the mediator to convince your spouse that you are completely right and he or she is completely wrong. Do not expect to come out of the mediation with everything you want. The purpose of the mediation is to get you both to compromise. You will have to give in on some things to get your spouse to give in on others.

One of the key facts you need to know before participating in mediation is that the mediator will lean on the “weaker” party, in an attempt to get that person to buckle and thereby reach an agreement. Therefore, before the mediation, you need to develop specific plans and identify the items that are negotiable and the items that are deal-breakers. Your attorney should assist you with this important task.

LEAVING YOUR PARENTING PLAN UP TO THE JUDGE; A LAST RESORT

A trial should be a last resort. You may think that going to court will vindicate your position and prove that you are right and the other side is wrong. More likely than not, the trial will turn into an exercise in mutual destruction and result no winner, just survivors. The losers, in the final analysis, will be your children.

Custody trials are often highly emotional and bitter with the parents making every effort to tarnish each other in the eyes of the judge. After a custody trial, parents will find it very difficult to put their hostilities aside and cooperate for their children’s benefit. The best result for parties with children is to emerge from the divorce with a good working relationship. If the parents do not reach an amicable resolution and must go to trial, they are not likely to be able to have a working relationship. They are also more likely to return to court after the divorce is final to seek changes in the parenting plan, continuing a conflict that is detrimental to the children.

Custody trials are extremely painful for children who don’t want their parents to fight because of them. Children may blame themselves for the anger between their parents. And custody trials are very expensive with the parents needing to compensate not only their attorneys but also expert witnesses—psychological professionals hired by each to conduct a custody evaluation and make a recommendation to the court.

Before deciding to take your case to court, consider seriously whether your children wouldn’t be better served by a “flawed” agreement. Accepting a less than perfect agreement may be better than allowing a complete stranger who does not know you or your children and who is seeing you during the worst time in your life to decide your parenting arrangement. Once you go to court, you cede control over your parenting plan to the judge. You could end up with something that you like even less than your spouse’s last settlement proposal.

BEST INTEREST OF THE CHILD

The legal standard that the judge uses in deciding custody issues is “the best interest of the child.” The standard allows the judge to consider just about anything he or she thinks is important regarding each parent’s ability to care for their children. Typically, judges will take into account each parent’s existing bond with the children; their work schedules; mental and physical health; ability to provide a stable and loving home; and history of wrongdoing (e.g., domestic violence, substance abuse, criminal record). Parenting history is also important. If one parent has been the children’s primary caretaker, many judges will be inclined to continue that arrangement unless it has not been working.

The judge will also consider the willingness of each parent to encourage a close relationship between the children and the other parent. One parent’s efforts to keep the children away from the other parent can backfire. A parent who has discouraged or prevented the other parent from seeing the children could end up losing sole or even joint custody. A judge will rarely order that one parent is to have no contact with the children. When the children are not safe with a parent, visits supervised by a third party are usually the solution.

Sometimes courts will hear what children have to say as to which parent they want to live with and why, but children never make the decision on where they will live. However, the wishes of an older teen can be influential.

GUARDIANS AT LITEM AND CUSTODY EVALUATIONS

To help with the decision, the judge may appoint a guardian ad litem (also sometimes called a law guardian) or order a custody evaluation. Or one or both parents may decide to get a custody evaluation. A guardian ad litem is a lawyer appointed by the court to represent the best interest of the children. The guardian may interview you, your spouse, the children, their teachers, coaches, and doctors, and your friends, neighbors, and relatives. He or she may visit your home and your spouse’s home and observe you both interacting with your children. The guardian will then prepare a report and make a recommendation to the judge.

A custody evaluation is performed by a psychological professional who will interview you, your spouse, and the children, administer psychological tests to you and your spouse and sometimes to the children, and prepare a report and recommendation for the judge.

One good thing about custody investigations and evaluations is that the outcome may lead the way to renewed efforts at settlement as the parent facing an adverse recommendation will usually be open to compromise. On the other hand, custody investigations and evaluations are intrusive and highly stressful for both parents and children. The reports may contain secrets and unflattering revelations that can be a matter of public record. And they can be very expensive.

DEVELOPING A TIME SHARING SCHEDULE FOR YOUR PARENTING PLAN

When parents are developing a set schedule of timesharing or contact between the child and both parents after a divorce, the tendency is to think in the short term about what will work today. However, children’s needs vary depending on whether they are infants, toddlers, preschoolers, elementary school children, or adolescents. If your children are very young, you may need to consider up to five different schedules, anticipating the changes in your children’s ages and needs. Or you may need to schedule meetings at set intervals to reevaluate your schedule.

Here are some general guidelines applicable to time-sharing schedules for children of all ages.

• Consider establishing a set schedule of time sharing that is written in your plan, even if you and your spouse are sufficiently flexible that you don’t need to strictly follow it. You may not need it now, but there are times when your relationship with the other parent may be difficult and it is better to be prepared than to be sorry later. You may ignore the set schedule now, and either parent can invoke it at difficult times, and then ignore it again at better times.
• Think about how involved each of you were in caring for the children during your marriage, prior to the breakdown of the relationship. Agree whether to you want to continue that schedule or make changes, and why. Shift your focus from your needs and wants to what is in the best interests of the children.

• The timesharing schedule should allow the children frequent and continuing contact with both of you. The law presumes that frequent and continuing contact with both parents is in the best interests of children. The parent who opposes allowing the other spouse frequent, continuing contact has to show why it would be detrimental to the children’s best interests. It is a difficult burden to overcome and requires a strong showing that children’s emotional, mental, and physical health would be at risk of permanent harm. If one parent can show that the other parent is a danger to the children, then contact should be limited. Supervised visitation, that is, visitation only under the watch of a third person, may be appropriate.
• The schedule should permit both of you to be actively involved in the children’s lives with responsible time as well as recreational time. Children need two homes and chores and involvement in day-to-day activities in both, for example, food shopping and cleaning the house. Both parents should have the opportunity to assist with homework assignments and school projects. Both parents should have time when the child has school activities and extra-curricular activities.
• Think about the location of your homes, each of your work schedules, and the children’s school and activity schedule. You and your spouse should make an agreement that is workable, consistent and does not impose excessive stress on the children. For example, equal timesharing will not be workable if you and your spouse do not live close to each other and to your children’s school. Similarly, if one of you works 60 hours per week or has an irregular schedule, or travels a lot on business, equal timesharing will be impractical. Try to develop a schedule that requires as few last-minute changes as possible. Try to change the appointment that interferes with the schedule, rather than the schedule, so the children are not disappointed and understand that they are the priority in their parents’ lives.
• If you have more than one child, individual time with each parent should be considered.
• Consider whether your children will need “adjustment” time. Children who go from one home to another may need time to adjust to the differences, unwind, and have preparation time for the next day. If the children have been away from one home for a long time, they are likely to need more adjustment time when the go to the other home. If you are considering equal timesharing, consider the temperament of your child and how the child adapts to change, a new caretaker, and a new school. Some children must sleep in one bed or use one toilet when being toilet trained or did not do well their first time in preschool or when separated from their caretaker; these children may not be good candidates for equal timesharing or equal timesharing may need to be deferred until the child is older.

The amount of contact is not as important as the absence of conflict between the parents, communication between the parents, and rituals created with the children. Children are destroyed by conflict and thrive in its absence. Rituals created with children, such as holidays shared, hobbies created, and routines such as some of the same books in both homes with bedtime stories each evening with each parent create the memories that children will carry with them to their children. So will they carry the conflict, arguments, fighting, and yelling with them. Counselors and therapists can help parents develop communication plans, and even ideas for rituals, before the children reach their school-age years when serious problems may arise, whatever the contact schedule.

Sarah Hobson

Attorney Sarah Hobson at Hobson and Hobson, P.C. are powerful advocates for those who fight for better futures for those going through divorce and custody law matters.