Useless JCA Provisions Should Be Spruced Up

by Annette Burns on May 12, 2012

Parenting Plans in Maricopa County, Arizona, need sprucing up in general.   Many attorneys are like me:  We have a form or forms that are used in almost all cases, with sometimes minimal customization for a given case.  Many clients ask that their parenting plan have the “usual” clauses in them, and when they don’t want to make decisions, they simply ask for the default Plan.   “What’s a ‘normal’ way to treat Winter Break?”

It’s often difficult at the divorce stage to know what customization is needed for a particular family, as the dynamics during the case change once the case is resolved and a Decree is entered.   We are all  painfully aware of those high-conflict cases where it’s difficult to get any JCA/ Parenting Plan at all finalized. By the time numerous drafts have been exchanged and dozens of letters and emails delivered with proposed language,  attorneys and clients sometimes agree (in a state of utter exhaustion) to use language in the Plan that is vague, general, aspirational, and of little use when a real conflict arises.  Which it will inevitably do.

Here are some sorry clauses that I found in very general JCA/ Parenting Plans that we still see in use:

  • Telephone and e-mail contact between the children and the parents will always be reasonably open and available.     If the parents agree on what is “reasonable”, this section is not a problem.    Those parents never seem to come into my office.
  • The parents will consult with each other regarding all medical treatment of a non-emergency nature for the children.     Any idea what this means?  Is “consultation” before making a well-child appointment, or arrangements for a sports-required physical really necessary?  Is the presence of both parents (and often stepparents) really necessary at these types of appointments?
  • The parent with whom the children are residing will take responsibility for meeting medical and dental emergencies.  It is understood that some decisions must be made on an emergency basis and, in such event, each parent acknowledges the other parent’s authority to make decisions to ensure the children’s welfare.    That’s a very nice acknowledgment and statement, and it’s good to know that the children will get emergency attention when necessary. But where are the provisions about notification to the other parent in the event of an emergency?
  • If either parent has any knowledge of any significant illness or accident or circumstance affecting the children’s health or general welfare, that parent will promptly notify the other of such circumstances.    Again, this statement works great if the parents can agree to what’s “significant”, what affects a child’s “health or general welfare”, and what “promptly” means.
  • The parents shall promptly inform one another of any emergency or other important event that involves the children.   “Promptly” and “important event” are generally in the eye of the beholder.
  • Each parent shall inform the other parent of any change in his/her address or telephone number within seven (7) days of the change   Really?  So the other parent should happily allow the children to go somewhere for parenting time for up to a week without knowing where the children are sleeping at night?  That doesn’t seem reasonable.  Why would a parent get less notice of the change of address than the electric company gets?
  • Should the needs of the children change, or should a parent’s ability to meet those needs change, the parents will confer and seek resolution of any concerns.   This sentiment is nice, but really doesn’t add much guidance for high-conflict parents.  What is a “change” of the children’s needs (and the parents generally don’t agree on that)?  What does “confer and seek resolution” mean in a practical sense?
  • If, through unforeseeable circumstances, either parent is unable to follow through with time-sharing arrangements as set forth herein, that parent will notify the other as soon as is reasonably possible.   This statement leaves all kinds of room for disagreement:   the circumstances weren’t unforeseeable—he’s been traveling for work for years!   And what does “notification” to the other parent mean—that the other parent is required to cancel whatever s/he has going on to take care of the children?   It just doesn’t say.
  •  Each parent will exert his or her best effort to work cooperatively in future plans consistent with the best interest of the children and to amicably resolve any disputes as may arise.   This statement seems completely useless.  If parents are going to do these things, they don’t need it stated in a contract (Plan).   If they’re not going to use “best efforts or work cooperatively”, then including this statement isn’t going to make it happen.   It’s unenforceable.    Aspirational statements like this may be okay for most separating parents, but for the ones who are headed for a high-conflict situation, it’s meaningless.

 

I’m going to do my best to keep meaningless and vague provisions out of my future Joint Custody Agreements, and to stop kidding myself that these Sections help parents navigate co-parenting.  Attorneys with years of experience in family disputes can do a much better job writing JCAs that will actually offer parents guidance in what to do in specific situations.  And if you’re an attorney who has updated your JCAs to do away with these vague provisions in favor of useful information for the parents, bravo.

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