Decisions regarding a child's residence and future interaction with both parents are among the most difficult for parties going through a divorce. In a divorce action involving children, the court will establish child custody provisions by entering a formal order called a Parenting Plan. The plan typically includes detailed guidelines outlining where and with whom the children will live, visitation arrangements, how major decisions impacting the child will be made, how disputes involving the plan will be resolved and requirements governing general parental behavior regarding the children.
It is always best if the parents can cooperate in developing the plan either through their own efforts or with a mediator. When parents are unable to reach an agreement, the court will decide the issues. Courts typically seek to ensure that a plan provides for frequent contact between the child and both parents unless there is a history of abuse or domestic violence.
Plans should be developed by considering what is in a child's best interest and not primarily designed to benefit the parents. Courts will consider a variety of factors in reviewing plans. The willingness of each parent to encourage a close relationship between the child and the other parent is usually a major concern. The parents' ability to cooperate and communicate, geographical proximity of the parent's homes and the amount of time spent by each parent with the child prior to divorce may also be considered as is required, for example, by Title 9 of the New Jersey Statutes.Physical Custody
The primary focus of the parenting plan involves physical custody. Even in joint custody situations, one parent will be designated as the primary or custodial parent. In most cases, the child will spend a majority of time with the primary parent, and visitation with the other parent will be outlined in detail. There is no single schedule that is required or which works best. Parents are free to be as creative as they desire given their own unique circumstances.
Often one schedule is outlined in the plan for infants and toddlers and another for school-age children. The stereotypical or traditional parenting plan once school begins is to have children live with the primary parent during the week and to reside with the other parent every other weekend from Friday evening to Sunday evening.
Holidays are often alternated each year so, for example, each parent gets either Thanksgiving or Christmas with the child every year. Winter and spring school vacations are split or alternated. Details are often included for special occasions including the child's and parents' birthdays. For school-age children, the summer vacation provisions might provide anything from two weeks to half the vacation being spent with the non-custodial parent. Often the plan will also specify the hours visitation will begin and end.
The plan generally contains provisions regarding phone access between child and parent, responsibility for transporting the child to and from the other parent's residence and what circumstances may trigger future modification of the plan such as one parent moving far away. The process to be employed for dispute resolution is often designated. Courts frequently require mediation before resorting to court involvement.Shared Physical Custody
When parents speak of shared custody, they typically mean that a child should spend an equal amount of time with each parent. The motivation for one parent to seek joint custody can sometimes be less than honest. A parent may think that caring for a child half the time will eliminate any need to pay child support to the other parent. However, when incomes of each parent are substantially different, a support payment will still often be required
True shared custody plans require both flexibility and commitment from the parents. Parents honestly considering shared physical custody must determine if that arrangement makes sense given a variety of factors including how closely they live in proximity to each other and to the child's school, work schedules, whether they cooperate well and how frequent switching between residences may affect the child. Change in a parent's work schedule can quickly make shared custody impractical.
Shared custody arrangements can also be as creative as needs dictate. A child may alternate weeks between residences or, as a variation, spend 4 days at one house and 3 days at the other each week then reverse the schedule the next week. Regardless of the schedule chosen, the key to success is consistency. Children thrive on routine, and that includes knowing in which home they will live each day.Legal Custody
Legal custody refers to parental rights and decision-making responsibilities regarding the health, education, and welfare of the child. Though physical custody may be split unevenly, joint legal custody requires that both parents be involved in decisions regarding religion, schooling and non-emergency health care. Parents might also want to share other major decisions including when a child can obtain a driver's license or join a school sports team. Similarly, provisions in the plan typically state that parents shall have equal access to school and medical records and are encouraged to attend school and social functions involving their children.
Joint decision making is typically required in a parenting plan and will be favored by courts unless there is a history of abuse or non-cooperation between the parents. If there is a demonstrated history of conflict between parents, a court may delegate major decision making to the primary parent.Success and Failure
The key to success in implementing a parenting plan is flexibility. In the best situation, where parents are cooperative after divorce, a parenting plan may act more as a general guideline. As needs require, parents can informally alter the plan. For example, if a parent who would normally have custody is required to leave town several days for work, the parents can just agree the non-custodial parent will provide care during that short period. As a child grows and becomes more involved in school, sports, and social activities, the initial plan may become impractical. Despite written provisions in the plan, the willingness for both parents to adjust to changing circumstances creates a win-win situation for both children and parents.
A detailed parenting plan becomes essential when parents are not cooperative or seek to use a child as a bargaining chip over issues such as support payments. When one parent plays games by failing to return the child on time or improperly seeking custody on a day designated for the other parent, the parenting plan becomes the essential guide for resolving the dispute. A plan that specifically states the dates, including start and end times, when a parent is to have custody is easier for a court to enforce.
If a parenting plan is incorporated in a court order, failure to follow the plan can result in a finding of contempt with sanctions including fines, loss of future time with the child and even jail. When one parent begins to flagrantly violate the plan, the other parent should keep a journal documenting the dates and circumstances of the violations. This information will be vital should court intervention become necessary.
Marriages may not last. However, being a parent to your child is enduring. A parenting plan is simply a bunch of words written on paper. Successful co-parenting results from actions which often go far beyond the words. The positive and cooperative interaction of divorced parents demonstrates to a child not only the ability to make the best of a difficult situation but also that the child is loved and supported equally by both parents. If you have any questions concerning a parenting plan and divorce, contact the Law Offices of Peter Van Aulen at 201-845-7400 for a consultation.