The Essentials of a Great Parenting Plan - Part I

Without question, it is the most important document you will have in a divorce/ child custody action, yet so few people have a GOOD one. Surprisingly, some people don’t have one at all. I am talking about your PARENTING PLAN.

Whether incorporated directly into your Decree of Divorce/Custody, or filed independently as a Stipulated Parenting Agreement, it is the document that lays out your specific custodial orders and what you can – and should – expect from your co-parent in serving the best interests of your child(ren).

I will roll out this blog out in THREE parts, as to what every good Parenting Plan should cover: (1) LEGAL Custodial Provisions; (2) PHYSICAL Custodial Provisions; and (3) ADDITIONAL Custodial Provisions (consisting of TEN specific provisions that, in my opinion, based on more than a decade of personal trial-and-error, every PARENTING PLAN should include).

AVOID THIS MISTAKE

First, however, a note about the biggest mistake people make when drafting their own Parenting Plan: LACK OF SPECIFICITY. As you draft the provisions to be included in your Parenting Plan, BE SPECIFIC. After you draft each provision, re-read that provision and try to make it more specific. Then, re-read it a SECOND time and make it even MORE specific. After that, you guessed it, re-read it a THIRD time and add one more layer of annoying, gut wrenching SPECIFICITY. Am I serious? Definitely.

SIDEBAR: Do you remember the movie Philadelphia with Tom Hanks and Denzel Washington? Remember how Denzel Washington’s character would always say, “explain it to me like I’m a six-year-old?” Think of Denzel’s character when drafting your Parenting Plan; in fact, let him serve as an INSPIRATION. Would Attorney Joe Miller (Denzel’s character) understand your Parenting Plan? Would he understand it, “like a six-year-old??” If so, you’re off to a GREAT start. ;)

Here are some examples of actual Parenting Plan provisions that I have seen recently. This is a really BAD provision:

“Each parent shall be entitled to reasonable telephone contact with the minor child.”

Huh? Reasonable contact? Reasonable to/by whom? What does this even mean?? I see this often and the attorneys that let these through are setting their clients up for major problems down the road.

Here’s a BETTER version of the same provision:

“During a parent’s non-custodial week, that parent shall be entitled to telephone contact (or electronic contact via Facetime, Skype, or other videoconferencing application) with the minor child on Monday, Wednesday, and Friday between 6:30 p.m. and 7:00 p.m.”

Not bad; but, here’s the BEST version of that same provision:

“The custodial parent shall be responsible for initiating the call to the non-custodial parent. If the non-custodial parent doesn’t answer; and fails to return the call prior to 7:00 p.m., then the call is deemed forfeited and the custodial parent has no obligation to accommodate a make-up call.”

“If the custodial parent needs to move the time of the call, based on plans or activities affecting the minor child’s availability, then the custodial parent shall notify the non-custodial parent in writing offering two other times to accommodate the call that day.”

Make sense, as to specificity?

Here’s another example of a BAD Parenting Plan provision:

“The parents shall exercise a week-on/week-off schedule with the child.”

BETTER version:

“The parents shall exercise a week-on/week-off regular custodial schedule with the minor child; custodial exchanges shall take place Friday at 3:00 p.m. of each week.”

BEST version:

“The parents shall exercise a week-on/week-off regular custodial schedule with the minor child; custodial exchanges shall take place Friday at 3:00 p.m. of each week. The receiving parent shall pick-up the minor child from school for the start of their custodial week; if the minor child is not in school, for any reason, then the receiving parent shall pick-up the child from the other parent’s residence (or other mutually agreed-upon location reached in writing).”

WHY SPECIFICITY IS IMPORTANT

So, why is all of this DETAIL and SPECIFICITY so important?

A few reasons, actually.

First, long after your divorce/custody litigation is over, you will refer to your Parenting Plan and you will refer to it OFTEN. When you do, you will need a specific answer to a specific question and you will need it FAST. Things like, whose turn is it to have the Fourth of July weekend this year? What time are we exchanging the kids for summer holidays? How much notice do I have to give my ex for summer vacation time? What happens if I forgot to give that notice? Who’s doing pick-ups and drop-offs when school starts? What happens when school is not in session or the kids are home sick? And, so forth. You will be looking for a straight-forward answer and you will need it quickly.

Second, more times than not, you will be referring to your Parenting Plan when a disagreement with your co-parent is IN PROGRESS and the level of conflict is HIGH. In an ideal world, you and your co-parent will treat each other with respect, decency, and a willingness to be reasonable for the sake of your child(ren). Unfortunately, it doesn’t always work out that way (in fact, sadly, it rarely happens that way).

Depending on your ex’s level of maturity; and how much vitriol, animosity, and resentment your ex has towards you as a co-parent, you may even find police officers or Child Protective Services at your front door asking questions about your custodial orders. In such instances (and they are more common than you might think), you need quick answers to specific questions with a high degree of clarity and certainty.

SIDEBAR: This reminds me, always keep electronic copies of your Parenting Plan (and other Court Orders) on your desktop PC, laptop, tablet, and phone; and always keep hard copies in you desk at home and in the glove box of your car(s). Also make sure that they are the official file-stamped copies from the Court. Over the years, I have needed copies of my paperwork at my work, my daughter’s school, her basketball games, and even at Disneyland during a Christmas vacation; and each time, I was relieved that everything was nearby and easily accessible.

Lastly, specificity leads to ENFORCEABILITY. Hopefully, you will never have to return to court after your Parenting Plan is entered; but, if you do, you will need CRYSTAL CLEAR Orders in place if you want the Court to enforce those Orders and/or hold your co-parent in contempt for their failure to follow those Orders. Absent very specific violations to very specific orders, the Court process will prove to be costly and largely ineffective (as to issues of enforcement, contempt, and sanctions, anyway). If you have to go back to court, go back to win, and go back with Orders that the Court can enforce.

SIDEBAR: It is not uncommon for co-parents to deviate from their Parenting Plan based on mutually agreed-upon changes. Is this acceptable? Absolutely. However, don’t forget to formalize any new changes with the Court (as a “Stipulation and Order”) and FILE it with the Court right away. You can update your Parenting Plan as often as you like (frankly, you SHOULD be updating your Parenting Plan as your child grows up and his/her needs change); and you can typically do so without having to appear in court. As long as BOTH parties agree to Parenting Plan changes, judges rarely stand in the way of such changes and are happy to sign-off on updated agreements. However, and this is IMPORTANT, if you do not obtain your judge’s signature and file your changes, the Court cannot enforce the new agreement if/when things go south (and always assume that, at some point, things can/will go south).

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Alright, without any further adieu, let’s dive in and talk about THE ESSENTIALS OF A GREAT PARENTING PLAN.

PART I: LEGAL CUSTODIAL PROVISIONS

LEGAL CUSTODY refers to a parent’s right to access information about their child and that parent’s ability to make decisions about their child’s upbringing (specifically, medical; educational; and religious-based decisions about their child). Chances are that you and your co-parent exercise JOINT LEGAL CUSTODY of your child(ren). This is the case more than 90% of the time; and it’s a good thing.

The State of Nevada has a statutory PRESUMPTION that joint legal custody is in the best interest of minor children (see NRS 125C.002); PHYSICAL custody is a little bit different (and involves a statutory PREFERENCE, not a presumption, that joint physical custody is in the best interest of children); we’ll talk more about that in the next rollout of this blog. In short, however, unless a parent is incarcerated, institutionalized, or otherwise deemed unfit, the Court is typically going to grant parents joint legal custody of their children.

SIDEBAR: Nevada state policy, as to the custody of minor children, is set forth in NRS 125C.001, stating, “the Legislature declares that it is the policy of this State: (1) to ensure that minor children have frequent associations and a continuing relationship with both parents after the parents have ended their relationship, become separated or dissolved their marriage; (2) to encourage such parents to share the rights and responsibilities of child rearing; and (3) to establish that such parents have an equivalent duty to provide their minor children with necessary maintenance, health care, education and financial support. As used in this subsection, “equivalent” must not be construed to mean that both parents are responsible for providing the same amount of financial support to their children.

So, what does JOINT LEGAL CUSTODY mean exactly? I’m surprised how many Decrees and Parenting Plans tell parents that, yes, they have joint legal custody of their kids; but then offer no further explanation as to (1) what joint legal custody consists of; (2) what types of information each parent is entitled to; (3) how parents should share such information with each other; and (4) what co-parents can, and should, expect from each other when it comes to raising their children.

As a point of reference, here is some good starting language that your Parenting Plan should include, with regard to defining JOINT LEGAL CUSTODY:

"The parties shall consult and cooperate with each other with regard to significant decisions/questions relating to the religious upbringing, education, health care, and any significant changes in social environment of the subject minor child.

The parties shall have access to medical and school records pertaining to the minor child and shall be permitted to independently consult with any and all professionals involved with the minor child.

All schools, health care providers, day care providers, and counselors shall be selected by the parties jointly. In the event of a dispute, the status quo shall be maintained until further order of the Court.

Each party shall be empowered to obtain emergency health care for the minor child without the consent of the other party. Each party is to notify the other party as soon as reasonably possible of any illness requiring medical attention, or any emergency involving the minor child.

Each party shall also be empowered to obtain any/all information relating to the well-being of the minor child; including, but not limited to, copies of report cards; school meeting notices; vacation schedules; class programs; requests for conferences; results of standardized or diagnostic tests; notices of activities involving the minor children; samples of school work; order forms for school pictures; all communications from health care providers, the names, addresses, and telephone numbers of all schools, health care providers, daycare providers, and counselors. The parties acknowledge that there may be some instances where such information may not be readily available to both parents; in which case, the parties agree to share such information with the other parent as soon as reasonably possible.

The parties agree that they are each allowed to attend any/all school, athletic, and social events in which the minor child participates; including, by not limited to, open houses, attendance at all school and religious activities/events, athletic events, school plays, graduation ceremonies, school carnivals, and any/all other events involving the child.

Each party shall provide the other party with a travel itinerary and, whenever reasonably possible, telephone numbers at which the minor child can be reached whenever the minor children will be away from that parent’s home for a period of one (1) night or more.

The parties shall encourage reasonable communication between the minor child and the other parent. Each party shall be entitled to telephone/electronic communication with the minor children (as specifically set forth herein). Each party is restrained from interfering with the minor children’s rights to privacy during such telephone conversations.

Neither party shall interfere with the right of the minor child to transport his/her clothing and personal belongings freely between the parties’ homes.

The parties shall communicate directly with each other regarding the needs and well-being of the minor child, and neither party shall use the minor child to communicate with the other party regarding parental issues. The parties shall use self-control and shall not verbally or physically abuse each other in the presence of the minor child.

Neither party shall disparage the other in the presence of the minor child nor make any comment of any kind that would demean the other party in the eyes of the minor child. Additionally, each party shall instruct their respective family and friends that no disparaging remarks are to be made regarding the other party in the presence of the minor child. The parties shall take all action necessary to prevent such disparaging remarks being made in the presence of the minor child, and shall report to each other in the event such disparaging remarks are made.”

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Now, does the Court ever deviate from joint legal custody? Yes, but it’ somewhat rare. Sometimes a parent is awarded SOLE legal custody (again, when a parent has been deemed unfit by the Court, is incarcerated, is institutionalized, etc.); and sometimes, I will see certain judges award PRIMARY legal custody (awarding one parent final “decision making authority” on medical, educational, and/or religious-based decisions). For whatever it’s worth, the SOLE and PRIMARY legal custody designations are not very common and sometimes require a lengthy non-jury trial/evidentiary hearing.

SIDEBAR: I am sometimes asked if parents can agree to designate “final decision-making authority” on their own with regard to legal custody issues. The answer is, yes. In fact, I observed a case recently where Mom was a medical professional and Dad was a teacher, so the parties stipulated to Mom having final decision-making authority as to medical decisions, while Dad had final decision-making authority as to educational decisions (the parties agreed to leave religious-based decisions as joint decisions). As noted earlier, if BOTH parties are in agreement as to a specific issue involving the upbringing of their children, the Court will almost-always accept said stipulations and not interfere with the wishes of the litigants.

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NEXT UP:

In a few weeks, I will post PART TWO of this blog and discuss the PHYSICAL CUSTODIAL PROVISIONS that every great Parenting Plan should include.

Have a great Fourth of July and thanks for reading!

- Mark

Mark DiCIero is the owner and founder of Pro Se PROS. You can contact Mark directly at 702.743.3338 or at mark@prosepros.net.