In my practice, I meet with a lot of people to discuss their questions about parenting time arrangements for their children. Sometimes, they don’t have any written plan governing the time they, and their co-parent, spend with their kids. Often, they do have a written plan but the parents are still experiencing conflict. Time after time, the source of that conflict can be brought back to one common theme: a poorly prepared parenting time plan. So, if I had my way, every parent would follow these ten basic rules when negotiating and drawing up their parenting time plan.
- HAVE ONE. That seems obvious, but it is surprising how often people try to limp along casually, “without running into Court.” Parents, if you are getting along, starting an action to get a spelled-out parenting plan doesn’t mean the Court will make you NOT get along. If you completely agree on a parenting plan for your children, you can usually submit one by “Stipulation” (agreement). The Court will review it for major flaws and will generally approve it. The judge won’t make you go to a trial if you don’t need to. Don’t be afraid of this process.
- GET SPECIFIC. One of the common mistakes I see in parenting plans, particularly plans that are agreed to by parents who are getting along at the time the plan is created, is the phrase “Mother/Father shall have parenting time at such times as the parents are able to agree.” That phrase, in most circumstances, should be avoided. It provides you no structure, no relief when there is a dispute.
- INCLUDE HOLIDAYS. The basic self-service center parenting plan form located at the Maricopa County Superior Court website provides a basic “check the box” form to assign holidays. I both like and dislike this form. I like it because it provides a pretty good list of the holidays that parents should think about defining in their parenting plans just so you don’t forget any. I don’t like the “check the box” format. I think “check the box” clearly violates my next piece of advice…
- DEFINE DAYS. How do you define Thanksgiving? Is it defined as Thursday at 8:00 a.m. until 6:00 p.m.? Until the next day at 8:00 a.m.? Is it the 4-day weekend from school? Is it something else entirely? If you use the “check the box” form, or you just include language such as “Mother shall have Thanksgiving in odd years and Father shall have Thanksgiving in even years,” you’re missing information that could avoid about 75% of the conflict that could exist. Remember to be clear about what each holiday, each break from school, each regular exchange time, really means.
- DON’T GET OVERLY SPECIFIC. Sometimes I see parenting plans that define EVERY possible holiday and EVERY possible special date. Be thoughtful about what special days you want to be sure to define and which days you really are okay “letting lie” on the regular schedule. Overly-defined parenting plans tend to generate conflict simply by being hard to remember and often, are very intrusive in kids’ expectations of their regular schedules. Some items you may want to think about including on the list of dates that don’t specifically require definition or rotation: Monday holidays (other than the “biggies” like Memorial and Labor Days), Veterans’ Day, Parents’ Birthdays, even the children’s birthdays. For plans governing older kids, think about leaving out Halloween and 4th of July.
- INCLUDE A SPECIFIC PLAN FOR RESOLVING DISPUTES OR MAKING CHANGES. I tell clients that a parenting plan is a “living, breathing document.” What I mean by that is that no plan, however well thought out and well drafted, will suit the needs of your family from birth to age 18. It’s just impossible to foresee every twist and turn of life. Especially when circumstances change, it may be necessary to edit the plan. Be sure to include not just that you will go to mediation before filing a modification action in Court (a widely-adopted provision in most parenting plans), but be sure you’ve stated who you’d mediate with (the Court’s mediation services or a private mediator) and who, or in what proportion you will each be financially responsible for the cost.
- INCLUDE EXPECTATIONS ABOUT COMMUNICATION. There are two lines of communication that need to stay open and protected: 1) communication between the kids and the non-scheduled parent and 2) communication between the parents. Include rules about how often and how you expect to be able to communicate with your kids (Daily? Every other day? Phone? Text?). Include rules about how often and how you expect to communicate with your co-parent about your kids’ events, illnesses, and general wellbeing (Weekly? Daily? Phone? E-Mail?).
- THINK CAREFULLY BEFORE INCLUDING A “RIGHT OF FIRST REFUSAL” CLAUSE. A right of first refusal, or childcare provider of first choice, clause is an order that requires parents to contact each other to “babysit” if the scheduled parent is unavailable. This is a hotbed of litigation for two main reasons that I see: 1) it’s very difficult to enforce – how do you really know when the co-parent is unavailable except by their self-report or the report of what is often a very young child?; 2) they are not typically well defined. IF you are going to include one, make sure you define when the requirement will “trigger.” I typically advise parents to use a 4 or 6 hour rule to avoid a scenario when even a quick trip to the grocery store while the kids play with their friend at the next door neighbor’s house turns into a brawl over first offering the time to Dad. Also define whether grandparents or step-parents count as “caregivers” who would require a call to your co-parent before they could take care of the children.
- HAVE IT DRAFTED OR REVIEWED BY AN ATTORNEY. Please, just do it. The money spent now will more than likely save you money in future litigation costs to resolve disputes that could have been avoided. Parents are in the thick of their own struggles and concerns and don’t always have the perspective to make sure you’ve thought of important details or to avoid confusing (and thus, hard to enforce) language. Lawyers have that perspective and we are here to help you create a workable plan that covers your concerns.
- PUT ANY CHANGES OR DEVIATIONS FROM THE PLAN IN WRITING. The parenting time police will not care that Mom and Dad traded weekends or that instead of picking up the kids at 4:00 p.m. from Mom’s house, Dad will now be picking the kids up at school when it ends for the day. Just put these changes in writing, preferably in an amended plan, but even an E-Mail will do, particularly for small or “one-of” type changes. Having something in writing means that you have a record of the change and that you have some confidence that your co-parent cannot unilaterally change back.
This list is in no way exhaustive of everything you could, and should, think about when creating a parenting plan. If you’re going through this process, please give my office a call to set up a time to meet with me. You may also want to check out the Arizona Model Parenting Time Plans at: http://www.azcourts.gov/portals/31/parentingTime/PPWguidelines.pdf.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice, please feel free to contact Lindsay A.M. Olivarez at 480.461.5336, log on to www.udallshumway.com or contact an attorney in your community.