By: Kiri Martin, Attorney at Law
Previously known as a temporary order or a final order, ?Parenting plans? became creatures of statute in Texas on September 1, 2005. The 2005 Texas state legislature passed into law 11 Family Code additions and 3 Family Code modifications, found in Subchapter J of Chapter 153 of the Texas Family Code, Sections 153.601 through 153.611; and Sections 153.007; 153.133; and 153.134. Through these, the Texas legislature seeks to protect children from the stresses, strains, and unfair burdens of family law litigation by helping parents resolve their current and future parenting issues now, thereby cutting down on the need for future litigation, and by encouraging parents to participate in the development of their parenting plan and to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage, and by changing our vernacular to encourage the use of such inclusive phrases as parenting time and parenting plan instead of visitation and court order, all of which in turn promotes the best interest of children, which in itself is Texas public policy.
It may be a partial unemployment act for family law attorneys who understand the desirability of cutting down on certain areas of family law litigation to advance the welfare of the child and the family above all.
Please note that Parenting plans do not apply to Attorney General cases.
The term ?Parenting plan? itself is specifically defined in section 153.601(4) as a temporary or final order that sets outs the rights and duties of parents in a suit affecting the parent-child relationship and include provisions relating to conservatorship, possession of and access to a child, and child support, but now specifically require a dispute resolution process to minimize future disputes. All temporary and final orders that deal with conservatorship in a SAPCR must incorporate a parenting plan. If the parties cannot agree on a temporary parenting plan, the court can send them to mediation or other alternative dispute resolution methods to try to establish one. Family violence is still the exception to the mediation requirement. Specifically in this context, an allegation of family violence without a requested hearing on the matter by either party will waive the mediation requirement ?or- a finding by the court after a hearing on the matter by a preponderance of the evidence that family violence has occurred will also waive the mediation requirement. Barring that, if the parties do mediate at the pre-temporary parenting plan stage and still do not reach an agreement, a party can then request to be placed on the ?rocket docket? or in other words he can request an expedited, preferentially-set or hurried-up hearing for the COURT to fashion a temporary parenting plan FOR the parents.
This process repeats itself at the final order stage.
Courts have found that by far, the vast majority of lawsuits filed in family law courts are modification lawsuits. Many of them can be seen as the result of the parents? poor communication, lack of flexibility, lack of provisions in their order, or refusal to cooperate, whether for legitimate reasons or not. The new parenting plan laws understand that every family is as unique as a fingerprint. They are intended to prevent parents from having to go to court to get an order on how to live the details of their daily, post-separation and post-divorce lives that were not otherwise provided for in their court?s cookie-cutter order made by a judge who has never met the child yet who must act in the child?s best interest because the parents cannot or will not agree, again, whether for legitimate reasons or not. Whatever the unfeasibility, undesirability, or disadvantage of sitting down with your ex spouse, soon-to-be-ex spouse, or other parent, the truth is that the two of you should know your children better than a judge. You should know their needs, demands, strengths, and weaknesses, and that they need active participation by both parents. You NOW need a new framework in your life - - and one that allows for all of this. AN experienced family law attorney can help you craft a parenting plan that is both specific and flexible, that works whether the parents are co-parenting well or not, and that encourages reviews and adjustments after one year to see what has worked and what has not, and then again every 2-3 years thereafter to provide for changing needs.
Agree on as much as you can. Include provisions for the plan to self-modify outside of court. Parties should be aware, however, that certain plan provisions, even though agreed to by the parties, may not be later enforced by a court. Examples include plans that try to change the standard that a court would use to rule on a modification request based on a desire to relocate, or plan provisions about a child?s religious upbringing. However, statistics show that parents who participate in reaching an agreement are 80% more likely to follow the agreement than if a court ordered it.
Enforcement issues aside, by law, in order for the court to adopt the agreed parenting plan as the order of the court, the parents must agree in the plan to resolve any future disputes through methods such as mediation or arbitration before filing a lawsuit, except in an emergency. The plan must also, at a minimum (1) establish the rights and duties of each parent with respect to the child, (2) minimize the child?s exposure to harmful parental conflict, (3) provide for the child?s changing needs as the child grows and matures in a way that minimizes the need for further modifications to the final parenting plan, and (4) provide for a dispute resolution process or other voluntary dispute resolution procedures before court action, barring family violence.
The final parenting plan must specifically state that preference shall be given to carrying out the parenting plan, and that the parties shall use the designated processes to resolve disputes.
Many (but not all) of the provisions to now include in your parenting plan are already part of standard Texas orders. The existing Texas Family Code is far more detailed than most other states, and already provides for such things as a parenting schedule THAT: (1) anticipates school breaks, holidays, and summer vacations, (2) defines when holidays and weekends start and stop, (3) remembers to include Mother?s Day or Father?s Day and birthdays; and (4) includes drop-off and pick-up times and locations. Can you imagine another state?s order that does not? Additionally, Texas orders routinely provide for (a) invasive, non-invasive, elective, or emergency medical and dental decision-making, (b) a specific address to which to send a child support payment, (c) the division of ongoing medical and dental insurance costs and uninsured costs for the children, (d) notification procedures to the other parent if a work or home address or telephone numbers or driver?s license number changes, (e) restrictions on future moves, (f) airline travel by a small child, (f) access to records through the school for things like reports cards, absence and tardy records, and calendars of special events, school activities and conferences, (i) special circumstances of alcohol and substance abuse, and (j) parent remarks and behavior. Can you imagine the litigation that would ensue over an order that did not provide for these?
Even though our current family law orders in Texas are and have been for years far more comprehensive and detailed than almost any other state, there is still room for improvement. Keep in mind the overarching goal of protecting children, involving parents, and cutting down on the need for future litigation by resolving current and future parenting issues now. Your individualized parenting plan exists to address additional areas that were not previously included automatically - - areas that so frequently cause disputes among divorced couples, such as transporting the child to certain extra-curricular activities or limiting telephone time with the child. As equally as important as addressing the foreseeable nuts-and-bolts, it can also address how future unforeseeable disputes will be resolved.
Every parent has or will have an unexpected emergency, schedule change, or request to work late on a special project. Many children have their own extra-curricular activities and after-school programs which fall on both parents? time. And EVERY child has and will have changing needs and wants as he or she ages.
In an ideal world, all parents would be flexible and understanding and work together to care for the children during these changes. This makes parenting seem more like real life to a child . . . instead of seeming like something different from the rest of his life.
If spontaneous flexibility and cooperation is not possible, however, advance planning through the parenting plan can help, preferably with the help of an experienced family law attorney. Each parent can individually map out his or her idea of the family?s post-divorce parenting issues, using a model plan that each parent can mark up and customize. Parents should also be aware of the unique needs of their children now. The plan should also contain options for a child?s future needs at different ages and developmental stages. This would involve incorporating assumptions that already exist in the field of child development.
Examples include (1) 50-50 parenting time and how to achieve it with a minimum number of transitions for the child; (2) adjusting child support to take this into account; (3) how to handle future anticipatable, foreseeable events 1-2 years out, including but not limited to short-notice business travel, family reunions, or other conflicts in schedules; (4) how to handle in a formulaic manner unforeseeable future events ? put it in a formula, such as rotation of responsibilities, a provision in there for short-term emergency caretaking of the child if something arises, you can designate a tiebreaker to make an unanticipated decision if there is an impasse - - a family doctor if the dispute is a medical one, a favorite teacher, guidance counselor, or coach if the dispute is an educational or after-school one, a mutually-trusted family member if the dispute concerns home life, or a pastor if the dispute is religious or is ethics-based. (5) who gets the tax deduction and when; (6) whether to require life insurance on each parent to benefit the child in the event of a death; (7) who pays for daycare and when; (8) whether to start a college fund, how to fund it, and in what amount, as well as how to select a college; (9) how to pre-approve or pay for a child?s extracurricular activity expenses such as automobile insurance, uniforms or musical instruments or whether certain extracurricular activities will be allowed at all, such as all terrain vehicles, street legal vehicles, tattoos, body piercings, etc. As a side note, most parents are not aware that the standard invasive medical procedure decisions awarded to one or both parents technically already include shots, tattoos and body piercings. This can be spelled out specifically; (10) whether these extra expenses are paid directly to the provider; (11) how to deal with delinquent extra expense payments that affect the child; (12) any restrictions on domestic or international travel such as forbidding puddle-jumper planes or travel to countries that are not signatories to the various and respective Hague Conventions or a deposit for the roundtrip cost to the other parent to pick up the child if necessary or other age-related travel costs and passport concerns; (13) notice of change in daycare; (14) notice of new relationships or people present with the children; (15) an agreement to not seek a change in parenting time solely because of a move; (16) future planning for loss of employment by or disability of a parent; (17) how and when to review and adjust child support; (18) adjusting parenting time for ages and stages of child development, particularly very young children and teenagers; (19) adjusting child support to give credit for parenting time; (20) terms of discipline of the child ? on this note, the 2005 legislature has added a new law that says that stepparents and grandparents can discipline a child now; (21) specific instances of parental behavior such as not using the child as a messenger, or, during the exchange, not fighting, using sarcasm, or demonstrating anger; (22) how to communicate with eachother about child issues such as sleep and eating schedule, medications, or other health matters; and (23) what to do if a parent is more than 30 minutes late to an exchange.
If the parties have not reached an agreement on a final parenting plan on or before the 30th day before the trial date, they each have to file with the court and serve on the other party a proposed final parenting plan of their own. Failure to do so by one parent may result in the court outright adopting the other parent?s plan. Each party must swear that his or her plan is proposed in good faith, and is in the child?s best interest, and must attach a sworn statement of income.
As of September 1, 2005 (with the exception of a lawsuit that only seeks to modify child support), every modification lawsuit that is filed to modify a previous order that did not fall under parenting plan laws must include the suing party?s proposed parenting plan. It must be filed with the court and served on the opposing party just like the modification. And the responding party must include the same in his or her answer. Whichever party pays child support must also attach a verified statement of income to the modification lawsuit along with the proposed parenting plan.
The attorney?s role is still to zealously advocate the desires of the client while providing counsel and maintaining the ethics, professionalism and integrity required of an officer of the Court. If the two proposed parenting plans (one by each parent) cannot be reconciled, a court appointed parenting coordinator is appropriate. A parenting coordinator is defined as an impartial third party appointed by the court to assist parties in resolving issues relating to parenting and other family issues arising from an order in a suit affecting the parent-child relationship. The new laws allow for but do not require the use of parenting coordinators to help the parents develop and implement a parenting plan in highly contentious cases that do NOT involve family violence. The family code defines ?high conflict case? as a SAPCR in which the parties demonstrate a pattern of repetitious litigation; anger and distrust; difficulty in communicating about and cooperating in the care of their children; or other behavior that in the discretion of the court warrant the appointment of a parenting coordinator.
A party can object to the involvement of a parenting coordinator if family violence is an issue. This is similar to the objection to the mediation requirement in cases involving family violence. An objection may be appropriate if one or the other parent has damaged or destroyed property or pets during an argument; has threatened to commit suicide; has pushed, slapped, kicked, punched, or physically hurt the other parent or a child; has or had problems with alcohol, drugs, or abuse of prescription drugs; has needed medication to be safe around others; has threatened not to return or has not returned the child; has used weapons to threaten or hurt people; has threatened to kill the other parent, a child ,or anyone else; has sexually abused anyone by force, threat of force, or intimidation; has been served a protective order; or has been arrested for harming or threatening to harm the other parent or anyone else, or has acted as though violent behavior toward the other parent or a child is OK in some situations. Safety-Focused Parenting plans can provide for supervised parenting time, no overnight parenting time, or other safeguards in these instances but otherwise this issue is outside the scope of this topic.
A parenting coordinator must at least hold a bachelor?s degree in counseling, education, family studies, psychology, or social work and, unless waived by the court, must complete a parenting coordinator course of at least 16 hours; OR hold a graduate degree in a mental health profession with an emphasis on family and children?s issues. He must complete at least 8 hours of family violence dynamics training provided by a family violence service provider.
A parenting coordinator can help to minimize conflict by being the neutral voice.
His authority will be specifically defined by the court in the order that appoints him, and is statutorily limited (or, more correctly, Unlimited) to such broad arenas as (1) identifying disputed issues; (2) reducing misunderstandings; (3) clarifying priorities; (4) exploring possibilities for problem solving; (5) developing methods of collaboration in parenting; (6) developing a parenting plan; and (7) complying with the court?s order regarding conservatorship or possession of and access to the child.
The parenting coordinator is paid by the parties, like a mediator, except in hardship cases. He cannot impose a solution on the parents. Nor can he testify in court. He may not be compelled to produce his own work product that he compiled during his appointment in the case. He may not be required to disclose sources of information.
A parenting coordinator can be removed on motion of one party if good cause is shown, or by agreement of both parties, or at the court?s own discretion. In his written reports to the court and to the parties will be his opinion as to whether his role is useful and should continue.
A parenting coordinator can, with court authority, suggest to or urge the parties to agree in writing to minor temporary deviations or departures from the parenting plan. But the parenting coordinator cannot himself unilaterally modify any order, judgment, or decree.
The court still has the ultimate authority to manage and control the suit and its docket; to decide child support; to decide possession of and access to the child; and, if no jury has been requested, to decide conservatorship.