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By Anna M. Sparks

Most divorce lawyers have a genuine desire to help their clients rebuild from the destruction that comes from a divorce. And one of the most important aspects of this is helping the client decide how to divide parenting time.

A comprehensive and detailed parenting plan will help parents avoid future battles because it will help prevent simple disagreements from escalating into full-scale conflicts.

A well-thought-out parenting plan should act like a road map to provide the parents with direction through inevitable conflicts. When creating a parenting plan for high conflict families, it is important to make sure that there isn’t a history of domestic violence, substance abuse or dependence, and that the there is no risk of flight with the children. Once the parties and the court have decided that both parents are fit to have custodial child visits, the work should begin to create a plan that meets the needs of the child.[1]

Overall, approximately 20 to 25 percent of children of divorce have been found to suffer significant adjustment problems, in comparison to about 10 to 12 percent of the general child population. Separation and divorce substantially increase the risk of a child having adjustment problems, but it is also the case that most children of divorce do not experience serious problems in life functioning.[2]

Multiple sources of research, from both divorcing and intact marriages, indicate that wives and husbands give generally divergent reports about their past patterns of child caretaking, decision-making, and other household matters. In one study of couples in custody disputes that used broad, presumably easy-to-reach criteria of agreement about child caretaking activity, only nine percent of the parents were in agreement with one another.

Although in the past a number of legal scholars have referred to the strength of attachment–represented in the amount of time a child has spent with a parent–as crucial in potentially determining child custody, what is generally thought of as important today is attachment security.

Attachment security includes the quality of the parent–child relationship, not the extent of contact.[3] Therefore, if during the marriage one parent worked and the other parent stayed home with the child, there is no automatic assumption that the working parent is not fit to care for the child. The dynamics of the family will necessarily change during a divorce and it is important to focus on the quality of relationship with the parent and child, not the quantity of time that the child spent with each parent during the marriage.

Traditionally, the parenting plan has been about child custody and the legal authority to make decisions on behalf of the children. This bare-bones plan does little to support a healthy co-parenting relationship during the initial period of separation and post-divorce. Research has shown us that the single most harmful aspect of a divorce for children is parents in conflict.[4]

If the main goal of the parenting plan schedule is the best interests of the children, it follows that the characteristics of each child and family should be a main focus. These characteristics include broad areas such as strengths, problems, and circumstances.[5] It may be helpful to have a client write a list of pros and cons of each parent’s ability to care of the child. Often you will find that each parent has strengths that can be worked into the plan.

A number of helpful parenting schedule prototypes have been developed. Some offer multiple schedules based on the age of the child. These schedules can be especially helpful if parents experience difficulty in getting started with the process. Looking at prepared schedule options may help individuals recognize time-sharing patterns that could work for them. Reviewing such schedules can also help individuals identify calendar options that would not work well for them and thereby narrow the focus to other alternatives that are more likely to be successful.

The Alabama Law Institute (ALI) has developed the Alabama Model Parenting Plan Form and General Time-Sharing Schedules Handbook. The handbook contains an Alabama model parenting plan form and numerous general time-sharing schedules to aid parents, judges, and lawyers in child custody cases.[6]

Developing a Parenting Plan–Where Do I Start?

The basic requirements of a parenting plan can be found in § 30-3-153. Under this section, all parenting plans must include: custody between the parents (i.e., joint custody, joint legal custody, joint physical custody, sole legal custody, or sole physical custody), the care and education of the child, the medical and dental care of the child, holidays, child support, any other aspects of the child’s physical and emotional wellbeing, and a designation of the parent possessing primary authority for the child’s involvement in academic, religious, civic, cultural, athletic, and other activities, and medical and dental care in the event the parents are unable to agree. When the parents cannot agree on what terms will be included in the plan, the trial court shall set out the terms of the plan after evidence is presented.

Divorce law was once described to me as a triangle. The families will have all the information about the needs of their children: their schedules, special family traditions, favorite places to eat, favorite vacations, family pets, favorite neighbors, schools, and, in general, all of the information that they experienced through everyday life. This is the bottom of the triangle.

The professionals are the middle of the triangle. The lawyers, counselors, and other professionals will spend a year or so getting ready to litigate a divorce and learning all aspects of a case from one party’s perspective and building on the information from the clients. Inevitably, the professionals learn a lot about the family, but still do not know the entire family as they operated during the times of unity.

The court is the top of the triangle. The court is going to listen to a day or so of testimony and look over evidence presented to it. Based on that very limited information, the court then has to make decisions about the personal details of the parties’ lives, including legal and physical custody, visitation schedules, and financial support.

Although having a court make these decisions is necessary at times, it is almost always better for the parties to make them through the entry of a settlement agreement. Parenting is about sacrifice, and in a divorce, both sides will need to sacrifice to ensure that the child is healthy and happy.

Some states, such as Utah, require that a parenting plan be filed along with the divorce petition.[7] The aim of this approach is to eliminate the perception that there is a winner when custody issues are litigated, reducing the incentive to compete. It is difficult to pronounce these a success.[8] Requiring a parenting plan from the onset may result in more animosity and more jockeying for an advantage in litigation.

The ALI handbook can be a big help in dealing with the seemingly endless options for dividing parental custody, including the ability of the parents to communicate, custodial arrangements and work schedules, age of the child, distance between parents, and the child’s relationship with each parent.[9]

Most of the schedules are moving away from the every-other-weekend arrangement for the non-custodial parent and toward allowing each parent to have weekly quality time with the child. The Alabama Model Parenting Plan Form and General Time-Sharing Schedule provides a multitude of possibilities assist the client in thinking about how to best divide custodial periods. All divisions start with the age of the child and all children’s need for consistency and stability. A very young child needs bonding with both parents and the ability to establish a routine. The ALI has developed five age groups for the plans: 0-three years of age, four-five years of age, six-12 years of age, 13-19 years of age, and plans for families with multiple-age children.[10]

The younger the child, the greater the necessity to focus on basic physical needs. For infants and small children, it is important that each parent be competent in feeding, diapering, soothing, bathing, and following a routine, including the child’s sleep cycle. Both parents of infants should keep a record of feeding, eliminating, sleeping, bathing, medications, and any new developments, and give it to the other parent upon the child’s return. Parenting plans should build in record-keeping exchanges as required provisions.[11]

As an attorney assisting in the development of plans for the client, it is important that we recognize the age difference in children and the need for time with both parents to create bonding and child development. A win-or-lose mentality in extremely detrimental to the children involved in the divorce process.

The best parenting plans include provisions that allow for adjustments as the child grows. That is the best you can do to minimize the likelihood of future legal battles. A child’s routine is quite different at six months than it will be at six years of age. A successful plan will factor in the child’s different stages in life.

An infant requires frequent contact with both parents to bond. Therefore, the plan may require frequent back and forth between the parents so that the child bonds with both parents. As the child ages, the schedule can be adjusted so that there are more days spent with each parent and allows for more quality time with each parent.

What is most important is to let your clients know that a parenting plan is a backstop for the parties in the event of disagreements. Many parents and attorneys believe that once a parenting plan is put in place, the parties can not deviate from the plan, but this is not the case since the parents have the ability to deviate from the plan by agreement.

Helpful Co-Parenting Resources

Co-parenting apps have become popular in the courts because they offer a way for parents to communicate without relying on text messaging or phone calls–which can be manipulated or abused in high-conflict situations. These apps can track when a parent opens a message (even if they do not respond to the message), post schedules for the child (and prevent them from having to have face-to-face communications), share medical expenses, and even pay expenses–all without having a conversation.

For attorneys, many of these apps include professional access to give attorneys the ability to monitor the parties’ communication, if needed.

As an added bonus, if the parties require court intervention, the parties’ communications can be printed, which is far better than pages of unorganized text messages, making it easier to manage and review.

Additionally, both parties are to understand that all communication on the app is to only relate to issues concerning the child, therefore minimizing the emotional outbursts by either party. Some apps even offer a filter that prevents the use of profanity toward the opposing parent.

Most of the apps cost no more than $100 per year. The technology allows for families to organize medical bills and extracurricular expenses, pay bills and child support, and maintain and swap schedules and shared time in the hopes that they will be able to prevent further court intervention. However, high conflict cases are inevitable and the ones that do return to court on modification or contempt petitions will have documentation that is more concise for the attorneys and judges involved.

Below are some of the most popular apps. The list is not all-inclusive. I have used several different ones and generally tell families to find the one that works best for their needs.

• Our Family Wizard               https://www.ourfamilywizard.com/            paid app
• Cozi App                                https://my.cozi.com/                                free and paid version
• WeParent                              https://weparent.app/                               paid app
• 2Houses                                https://www.2houses.com/en/                 paid app
• Custody Connection           http://www.custodyconnection.com/         paid app
• CoParently                            http://coparently.com/                              paid app
• Partnership                           https://www.parentship.co/                       paid app
• AppClose                               https://appclose.com/                              free app

Endnotes

[1] Hynan PHd, Daniel J., Parenting Plans, Meeting the Challenges with Facts and Analysis, (1^st ed. America Bar Association 2018).
[2] Michael E. Lamb, Critical Analysis of Research on Parenting Plans and Children’s Well-Being, in PARENTING PLAN EVALUATIONS: APPLIED RESEARCH FOR THE FAMILY COURT, 2d ed. 170, 182 (Leslie Drozd et al. eds., 2016).
[3] See Id.
[4] Hynan PHd, Daniel J., Parenting Plans, Meeting the Challenges with Facts and Analysis, (1^st ed. America Bar Association 2018).
[5]See Id.
[6] The Alabama Law Institute, Alabama Model Parenting Form and General Time-Sharing Schedules Handbook, http://alabamaparentingplans.org/.
[7] FAMILY LAW: DON’T FORGET THE PARENTING PLAN, 31 Utah Bar J. 46, 47.
[8] The Elimination of Child “Custody” Litigation: Using Business Branding Techniques to Transform Social Behavior, 36 Pace L. Rev. 375, 377.
[9] The Alabama Law Institute, Alabama Model Parenting Form and General Time-Sharing Schedules Handbook, http://alabamaparentingplans.org/.
[10] See Id.
[11] Hynan PHd, Daniel J., Parenting Plans, Meeting the Challenges with Facts and Analysis, (1^st ed. America Bar Association 2018).