We agreed to a new Parenting Plan; should we go back to Court?

It is typical for parents to make changes to their parenting plan and visitation schedules as their children age. Indeed, we often refer clients to two resources which suggest that parenting plans need to change as children age to accommodate their different developmental requirements: Planning for Shared Parenting: A Guide for Parents Living Apart and the Model Parenting Plans.

In addition, we usually include the following paragraph or something similar in our agreements:

Nothing contained in this Agreement shall preclude both parents from jointly and voluntarily modifying the above-described co-parenting schedule or from reaching agreements for the co-parenting of the children by the parents that are not in conformity with the foregoing co-parenting schedule provided that such modifications and agreements be reduced to a writing in advance and be signed and/or otherwise (e-mail) confirmed and/or otherwise ratified by both parties. Either parent may request a modification of the foregoing parenting schedule from the other parent. Any modification of the parenting schedule shall be requested reasonably in advance, except in emergency situations. The parties shall take into consideration the best interests of the children when discussing exceptions to the parenting schedule.

This is intended to provide parents with encouragement to be flexible when life requires it or children's ages require new arrangements.

But, if you enter into such a modification, should you go back to court to have it approved by the court?

According to the Massachusetts Appeals Court in an unpublished decision, if you don't ratify the agreement in writing and have it approved by the court it may not be enforceable. In Benoit v. Benoit the court found that the oral agreement between parents to make changes to the parenting schedule was not sufficient evidence to show a material and significant change in circumstances. The court therefore refused to enter the oral agreement as a new order. If the parties had made the agreement in writing and entered it as an Agreement for Modification, then the Father could have enforced it in court. But since they didn't, the court was not willing on the evidence of an oral agreement alone, to enforce the changes.

What is a Parenting Plan? What is the best Parenting Plan for my children?

A Parenting Plan is a comprehensive agreement which sets out both the time that children will spend with each parent as well as the rights and obligations of each parent to the children and the other parent during their parenting time. It can include a holiday visitation schedule, pick-up and drop-off locations, and even agreements relating to what will happen if one of the children becomes ill. Parenting Plans are necessary when two parents live apart (whether because they were never married, are divorced, getting divorced, or simply choosing to live separate and apart).

Parenting Plans can be made specific in instances where it is necessary to prevent future conflict, and they can be made flexible so that you and the other parent can make agreements outside of the parenting plan in unforeseen circumstances.

The best Parenting Plan for each family will depend on the ages of the children in that family,the schedules of both the parents and the children, the relative parenting abilities of each parent, any special needs of the children, and the family's traditions. Many people have trouble figuring out where to start in creating a parenting plan and in order to assist separate parents, the Massachusetts Courts asked a a Task Force of judges, lawyers, probation officers and mental health professionals to provide Model Parenting Plans. The Plans are available on the Massachusetts Courts website and although not mandatory or presumptive they can be helpful in designing a Parenting Plan that reflects the ages of the children and the relative involvement of each parent. While these schedules may not work for every family, they are instructive as to what many experts believe are the types of schedules most likely to encourage positive child development.

When considering the best Parenting Plan for their family, we encourage our clients to review these Model Parenting Plans as well as the guide: Planning for Shared Parenting: A Guide for Parents Living Apart.

Thank you to Fern Frolin of Grindle, Robinson, GoodHue & Frolin for bringing this latest news to our attention in her presentation at the MCFM Family Mediation Institute on November, 22, 2010.

How should a Child's Age affect their Parenting Plan?

It doesn't take a child development specialist to know that children of different ages have different needs. But how do we apply this knowledge to create age-appropriate parenting plans?

The greatest key to working out an appropriate parenting plan regardless of age, is being able to communicate effectively with your co-parent (or take advantage of resources to help you communicate effectively such as mediation or collaborative divorce).

But if you are not able to work out a plan directly, or need assistance in figuring out what might work best, there are resources available.

Zero to Three: Parenting Issues and Parenting Plans For Young Children is an article devoted specifically to the developmental needs and corresponding parenting plans for very young children.

In Massachusetts, the Court recognizes that their are certain developmental stages that each child goes through, and that it is important for both parents to be involved in the child's life for their development to be complete. In an attempt to recognize at least some generalities in these differences, a committee of mental health practitioners, family law lawyers and Judges wrote a very useful guide to shared parenting called Planning for Shared Parenting: A Guide for Parents Living Apart.

In addition, a similar committee of Massachusetts judges, practitioners and mental health professionals produced Model Parenting Plans, which in many ways correspond to the recomendations suggested by the earlier Planning for Shared Parenting brochure.

At Kelsey & Trask, P.C. we have created a Parenting Plan Worksheet to help you visualize these Model Parenting Plans and/or other Custom parenting plans on a color-coded Calendar.

Should Shared Parenting be Presumptive?

The Minnesota House recently passed a shared parenting bill which has a presumption of at least 45.1% of the parenting time with each parent.  This presumption can be overcome by certain factors.  Attorney Robert Franklin has written an editorial supporting the bill and calling on the Senate and Governor to pass it as well.

A similar movement has been trying to get presumptions of shared physical custody passed in Massachusetts, and we reviewed these proposals in our series on Custody Reform.

Custody Reform should be based on evidence about what defaults are in the best interest of children. There is evidence of a shift in our society to greater parenting involvement of fathers, but the available evidence is still strongly in favor of very young children spending more time with their mother. Frequent contact with both parents is necessary at a very young age, but equal time doesn't take into account the realities of the unusual feeding and sleeping schedule that newborns have (especially if the mother is breast-feeding).

Mr. Franklin indicates that breast-feeding can be worked around through pumping and storage as mother's who work often do.  However, this ignores part of the benefit of breast-feeding which is bonding with the mother.  This comment also ignores the immense pressure put on mothers of newborns.  Because of the need for newborns to have constant contact with both parents to form a bond with them, an equal parenting plan at this age would involve almost daily transitions.  Mr. Franklin expects these mothers to work, pump every two to three hours and accommodate multiple parenting transitions.  I'm not sure when he expects them to sleep?

I am in favor of recognizing the societal shift in parenting duties through greater presumptions for shared physical custody. However, there should also be some indication that this presumption does not mean equal time for children whose age would not favor equal time. I would suggest some tempering of the shared physical custody presumption to recognize the different needs of children at different ages.  The Shared Parenting brochure and the Model Parenting Plans provided by the Massachusetts courts both recognize this need to adjust the schedule and division of time as the child grows older.

Maybe the time has come to change the presumptions, but that doesn't mean we have to force those presumptions to fit every situation.  Presumptions of shared parenting with children of certain ages makes sense, but with children who are very young or who have special needs there needs to be consideration of how those factors affect their needs.

For more information check out these resources:

Parenting Plan Worksheet - Use this worksheet to help compare potential or proposed Parenting Plans on a user-friendly calendar.


Child Custody Mediation
Collaborative Child Custody Resolution
Child Custody Litigation