By Ellery Johannessen
October 22, 2022
Here’s a thought experiment. You and your former partner have been sharing custody of your two young children, ages 7 and 9. You have a shared parenting schedule where you each have the kids for two weekdays and alternate weekends. You both live fairly close to school and you share decision making on non-emergency medical and education decisions. Your 7-year old is into sports and goes to baseball practice twice a week, and your 9-year old plays the piano and takes lessons. You’re the more artistic parent and your partner is more into sports. You both loosely agreed to the activities the kids, but activities aren’t addressed in the court order. Each of the kids’ activities each fall on one of your weekdays. Weekends see periodic recitals and games.
Your 9-year old has an upcoming recital, which falls on the other parent’s weekend. The Thursday before, your former partner tells you that they and your child won’t make it because they’ve made other plans. They’re going to an amusement park – or camping – or some other non-recital activity. You’re livid. You call your former partner and yell at them for interfering with the child’s activity, and they yell back and tell you to leave their parenting time alone.
Three weeks later, the 7-year old has a weekend baseball game during your weekend. You take the kids out of town to a birthday party for an old friend. You told your former partner it was because you wanted the kids to spend time with family friends. The roles are flipped from weeks before and the two of you exchange angry text messages full of what-about-ism and accusations of contempt.
In the coming weeks, and with mutual loathing, you begin to pick at one another. Your both begin lacing your written messages with languages you remember hearing in court like “not in the children’s best interests” and “interference with parenting time.” You argue over things you never argued about before, but you now feel are world-shaking issues. Eventually, one of you gets mad enough to file for contempt or to modify the parenting plan.
Now, you’re back in court and spending thousands of dollars, probably unnecessarily. How do you avoid this from the get-go?
The Essence of Parenting Plans
In Washington, parenting plans are designed to be a baseline. They are a fallback, a final destination on the roadmap to a place were agreement, compromise, and reason fall apart. When all else fails, you have this to fall back on. Parenting plans are the foundation upon which consistent parenting relationships are eventually built – so long as everyone plays their part.
Parenting plans are designed to resolve two major questions among parents: who makes decisions, and what the schedule is going to be for the kids. Each of those major questions has many, many sub-parts. For decision making, parents can include a host of topics such as religious upbringing, piercings/tattoos, mental health care, extracurricular activities, daycare, summer camps, on down the line to be as specific as what musical instruments the child is going to learn. The schedule covers regular school time, summer break, and holidays. Holidays and other special occasions usually take precedence over the regular schedule. There’s also a lengthy section at the end dealing with “other” orders, which can include anything else you want to set as a guideline for your parenting relationship, from travel notifications to non-disparagement clauses. While they sound good, these other orders are largely unenforceable for a host of reasons and lead to lots of petty disputes.
Parenting plans can be either too specific and not specific enough. If they’re too specific, they lend themselves to nitpicking over small details, constant fights about interpretation, even interference with one another’s parenting time. For example, I recently dealt with a case involving a restriction on how short a child’s hair could be cut. By imposing the restriction, the parent who requested it effectively interrupted on the other parent’s time by dictating that he could not get the child haircuts during his residential time. The other parent responded by staying within the haircut length limitation, but getting a haircut every visit.
In the scenario we began with, the parenting plan didn’t have enough detail in their parenting plan. Extracurricular activities weren’t allocated for either party to decide, nor was there an express ruling that they be made jointly. As a consequence, under the default language in section 5 of a parenting plan, each parent was free to make their own decisions about parenting. On the other hand, each parent had established an expectation with the other that their respective chosen activities would be honored on the other’s parenting time. While it is reasonable to argue that neither had the authority to impose on the other’s time, it is just as reasonable to argue that the parties accepted that arrangement through their conduct. In any case, a judge isn’t likely to grant contempt to either party and will probably admonish both for going into court for what amounts to little more than bickering. Everyone is going to spend a lot of money on a giant nothingburger.
How do you avoid these petty disputes?
Parenting plans should be crafted on three basic principles: simplicity, endurance, and flexibility.
Simplicity means nix the small stuff. It is always challenging for parents to avoid picking nits while they’re in the throes of the emotion that comes along with a divorce or deciding a parenting plan. When you’re thinking about what terms you want to include in a parenting plan, think about the relationship historically. What did you disagree about with your former partner? How did you resolve those disputes? Were the things you disagreed about big deals or small stuff? Some parents want to include things like demanding the kids have jackets on when the go outside, not have cell phones until a certain age, and restrict grooming styles. Most of these nitpicking details go into the “other” provisions. The thing is, most of these little things are at best challenging to enforce. You can’t enforce an anti-disparagement clause without a reliable and credible third-party witness because anything else is going to be hearsay. Judicial officers look down on disputes that they view as bickering. When there isn’t some sort of real harm to the children or affirmative acts of alienation and interfering with parenting time, judges aren’t going to pay much heed to these types of disputes. Before demanding every little detail you want in your parenting plan, ask yourself: is this one little thing really going to be harmful to my child?
Endurance means to play the long game and crafting a parenting plan that won’t land you back in court every other year. This goes back to the first “P” in our litigation outline. Endurance factors in somewhat to the analysis above about the things that you’ve historically argued about, but it also means thinking about your children’s futures. Take our 7-and-9-year-olds above. Right now they’re in elementary school and they’re doing some extracurricular activities. What about when they turn 12 or 13? Will they want to get their ears pierced? Will they want cell phones of their own? How do you handle them wanting to get their driver’s license? Parenting plans are built to last and it is expected that parents will project out until the kids are either 18 or out of high school, whichever is later. Build your parenting plan with the foresight to address these inevitable milestones so that they don’t catch you off guard.
Flexibility means building enough wiggle room into your parenting plan that nobody is going to run into court for small issues. If your exchange time is 5 pm, are you going to march into court for contempt if your former partner is 5 or 10 minutes late? If the kids miss a scheduled phone or video call with your former partner while they are with you because something unexpected happens, do you think your partner should run into court and accuse you of contempt? What about missing an extracurricular activity on a weekend? Allow your former partner to err within the bounds of what is human and be willing to forgive, but expect the same from your former partner.