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Child custody law has been the subject of major reform efforts since the 1970s. The first and most obvious was a shift to shared or joint custody. Virtually all states now contain authorization for such orders with some having either a preference or even a presumption that such arrangements are in the best interest of children. In response to the notion that parents should continue to play an important role in children’s lives after divorce, voices were raised on behalf of those who feared that an emphasis on continued contact would mask the reality that in situations involving abuse or domestic violence, such “sharing” would not be in the child’s best interest. The result was a series of statutes that sought to limit parental involvement in such situations or require that protective measures be put in place. A third trend was an emphasis on private ordering (parents know best what will work for their kids) and the corresponding emphasis on nonjudicial approaches to resolving future parental conflicts. All of these trends are reflected in the introduction of various forms of “parenting plans.” More jurisdictions are requiring parenting plans Parenting plans are detailed descriptions of the manner in which parents intend to continue caring for their children after divorce. In many jurisdictions, the statutes that authorize them also contain provisions that require courts to be alert to the possibility of abuse in the family and to ensure that the provisions of the plan are designed to protect the child. An increasing number of jurisdictions require a parenting plan in all cases. Additional states require such detailed plans before a joint custody order is entered. A third group of states gives the court discretion to require a parenting plan in any case. The requirements for the plans vary significantly with greater detail required when joint custody is to be ordered. There is some, though not much, empirical evidence concerning the benefits of parenting plans. Much of the impetus for the development of plans has come from the mental health field. Relying on numerous clinical studies, mental health commentators have provided legislatures with strong evidence that encouraging parents to work together at divorce will inure to the benefit of children. They suggest that requiring parents to focus on the specific needs of their children and to anticipate and address expected changes in their lives will lead to better long-term outcomes for those vulnerable to the emotional upheaval that often accompanies divorce. It is hoped that such forethought, as well as agreement on how to resolve disputes, will reduce future conflict that is also so detrimental to children’s well being. Those opposed to such plans frequently limit their criticism to those that are mandated, and suggest that they add additional burdens to divorcing parents and may actually increase the level of conflict at the time of the dissolution. There is, however, little evidence to support the notion that the plan’s development will significantly increase conflict. The trend is clearly in the direction of increased use of parenting plans. Two recent enactments in Texas and Connecticut are illustrative. The 2005 Texas Legislature found that the use of parenting plans will assist in promoting the interest of children and in helping litigants resolve their issues relating to parenting. The new law is intended to assist parties in minimizing conflicts in their post-divorce parenting through creating a “parenting plan,” which establishes the parents’ rights and duties with respect to the children and which provides procedures for resolution of future disputes. The Connecticut law, which became effective in June, places greater emphasis on shared parenting, and requires a “parental responsibility” plan for most custody cases. The Texas statute is very broadly worded and does not contain details about specific areas to be addressed in the parenting plan. The Connecticut law, on the other hand, outlines broad categories to be considered, such as decision-making authority, physical schedules, provisions for dispute resolution and consideration of changes in the child’s life. The American Law Institute in its Principles of the Law of Family Dissolution recommends that parents submit a plan to the court. Parents are encouraged to file a joint plan and if they do so the court should adopt their plan unless it finds that the agreement was not knowing or voluntary or would be harmful to the child. If the parties are not in agreement, they are each to file a proposed plan for consideration by the court. Regardless of the form required, there are some elements common to most plans. First and foremost is generally responsibility for decision-making. This is often related to statutory designations such as “joint legal custody” or “sole legal custody.” It should be noted, however, that an increasing number of states are moving away from the use of the terms “custody” and “visitation.” They are instead using phrases such as “decision-making responsibility” and “parenting time,” reflecting the underlying assumption that there are many ways in which parents are involved in their children’s lives-ways not captured by the traditional terms. The use of the new terms is commonly seen in parenting plans. Typically, the first section of a plan will focus on responsibility for educational decisions, such as where the child will attend school, as well as methods of communicating information from school; health care decisions, including the selection of health care providers and notice concerning illnesses and emergency care; and religious training if appropriate. Other important matters relate to the selection of child care providers and participation in extracurricular events and activities. In addition to decision-making authority, all comprehensive parenting plans will include a description of the child’s schedule. This will generally include a weekly, vacation and holiday schedule. This section is of particular importance, since it affects the daily life of the child and the parents, who are now living apart. The third most common element of these plans relates to the resolution of future disputes. Here the emphasis is clearly on nonjudicial processes, such as mediation or the use of parenting coordinators. Some states already require parties to seek mediation before asking for court intervention in ongoing parental disputes. The plans allow parties to suggest time frames for seeking such processes and for identifying the third party who will assist them. Another important aspect of these plans is an emphasis on modification or review. By the very nature of their subject matter, these agreements are going to have to respond to the aging and attendant changed circumstances of the children. For this reason, provisions are often included that relate to a periodic review, or one triggered by a change in circumstances such as relocation or remarriage. Further provisions of a plan include details concerning transfer and transportation, telephone access and notification procedures for changes in schedules. Issues such as who will care for the child if school is canceled or the child is ill and cannot attend school can also be addressed. Child support can also be considered. In addition to basic amounts related to the state’s guidelines, the plan can address support for education, extracurricular activities, transportation and other extraordinary expenses. Most recently, there has been increased focus on refining parenting plans to meet the needs of children at different stages of their development. Again, these age-appropriate plans were first suggested by mental health professionals who argued against a “one size fits all” schedule. They emphasize that children have very different needs at different stages of their lives, and these can only be addressed by paying close attention to the particular needs of individual children’s schedules. Focus on those exposed to domestic violence As mentioned earlier, another trend in child custody legislation has been a focus on protecting children exposed to domestic violence. A parenting plan can be adapted to meet the unique needs that arise when a child may be exposed to violence or other dangers that may arise due to drug or alcohol abuse. Many states require courts to consider the impact of these situations in designing orders, and the plans developed must satisfy the court that the child will be protected. Also, if the parents’ interaction tends to lead to conflict, arrangements can be made to reduce the amount of interaction between the parents. Some states may provide model plans but most often they simply refer to the items to be addressed in the plans through their statutes. Organizations such as the American Academy of Matrimonial Lawyers have developed comprehensive plans that address virtually all parenting issues likely to arise at divorce. The academy plan is illustrative of a “second-generation parenting plan” in that it is designed to meet the developmental needs of individual children. Even in those jurisdictions that do not require a parenting plan, they can be useful. The plans can be used as a means of promoting discussion with clients about their hopes and desires for the future care of their children or as a tool for preparing for anticipated litigation by highlighting contested issues. They can also be used to make recommendations for a court order or findings. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected]. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected].

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