Which provisions of a parenting plan are most likely to be used as a weapon in a high conflict case? Here are my nominees.
Number 3. You need my permission to take the children out of state or out of the country. Many, many parenting plans still include a provision that one parent can’t travel out of the country, or even out of the state, without the other parent’s permission. Now I can understand the provision applying to out of country travel, at least as it relates to long trips abroad, and especially to countries that may be iffy as far as security. (Don’t get me started on trips to Mexico . . . that requires a post all to itself.) But the requirement that the other parent’s permission is needed to take the children on an out of state trip has me flummoxed. Why? Is there an allegation that North Dakota is contrary to the children’s best interests? Now, if that prohibition applied only to trips to Florida, I could almost understand it.
Even when this provision applies only to out of country trips, it is often misused by a parent forbidding a Caribbean or Disney cruise or a trip to a Mexican resort. I recommend that this provision be drawn narrowly, to provide that permission is necessary for travel out of the United States, except for trips of less than eight days involving a commercial cruise. That exception would take get rid of probably 80% of the time and money expended on fights about travel.
Note that my comments above apply only to “permission” required of the non-traveling parent. NOTICE of the trip, including all aspects of the travel itinerary and where the child will be sleeping at night, should always be given to the non-traveling parent.
Number 2. Telephone contact with the noncustodial parent. “The parent who does not have the children is entitled to reasonable telephone contact during normal waking hours.” That’s great, except what is reasonable? And if normal waking hours are considered to be 7am to 8pm every school day, does that mean the noncustodial parent can routinely telephone the children before school? While driving to school? Immediately when school is dismissed? During dinner hour? If the parents are truly reasonable, then this clause is fine (and, one might note, they don’t need the clause at all). If the parents have different ideas about what’s reasonable, then a clause that states something more specific is in order. The parents need to discuss whether the children (not the parents) truly need to speak with the other parent every single evening. Clauses providing for telephone contact every other day, or every third day, might be much more practical. And, a clause providing that “the children will be made available on the custodial parent’s land line number every other evening between 7-8pm to receive a telephone call from the noncustodial parent for approximately 10-15 minutes’ duration” might be best of all.
And the Number 1 Misused Provision: No surprise here: the first right of caretaking clause, in all its various forms, continues to be the biggest point of contention between parents who want to fight. Whether it’s leaving the kids with a stepparent, a grandparent, your next door neighbor, or letting the little ones attend an overnight at a friend’s house, Parent A is likely to claim that if Parent B “isn’t there to exercise his/ her parenting time”, then “I get them before anyone else does.” Disclaimer: I’ve been ranting on this provision since I wrote Second Thoughts on First Right of Refusal in 2008 (and I wrote an article in a Family Law Section newsletter even before that, I think).
If two parents agree to this first right of caretaking clause after a thorough discussion and having a chance to examine how it will really work, that’s great, and in those cases, the provision should be enforced. Too often, that provision is included as “boilerplate” in a parenting plan, and one or both parents sign off on it without thinking through the ramifications. That’s where the post-Parenting Plan trouble starts.