Speaker 1: 0:00

Welcome everybody. Today we are going to talk about creating a parenting plan. There are lots of things to consider when preparing a parenting plan. The first thing to keep in mind is that this really is about your children's best interest. Very often when you're first coming up with a parenting plan or you could think of it as a custody plan, actually a joint custody plan very often when you're coming up with this plan for the first time, there's so much else going on that it can kind of cloud your judgment and it can take your focus off of the kid's best interest. Oftentimes there are concerns about child support, there's concerns about alimony property and debt division potentially if you're dealing with a divorce, concerns about alimony property and debt division, potentially if you're dealing with a divorce and these issues can all sort of get in the way of parents who otherwise are great parents, thinking about their children's best interest. So the number one thing to do is to be focused on your kid's best interest when you're creating this custody plan. In a custody plan you're going to have provisions that relate to decision-making and physical custody and visitation.

Speaker 1: 1:11

When we talk about decision-making, we're referring to legal custody. It's different in different states, obviously, but there are a lot of similarities as well, and the growing trend, I think, across the country and the growing trend, I think, across the country is for there to be joint legal custody, if it's possible. By joint legal custody we're talking about shared decision-making and that decision-making can be shared equally. There can be carve-outs or different areas of responsibility and there can also be what is nominally joint custody with equal decision making. Except sometimes there's joint custody plans will identify one of the parents as the final decision maker if there's a disagreement. So that's not truly a joint custody plan if that's the case. But there's some advantages potentially as well.

Speaker 1: 2:00

So when would joint custody not be appropriate? So when would joint custody not be appropriate? Well, when there's been abuse that has not been treated properly. If you are just getting into a joint custody situation and there has been domestic abuse, then that person presumably is not a proper person to have as a joint legal custodian. It's difficult to make decisions with the person who's abused you and if the person continues to engage in elements of coercive control, even while you're separated, it's going to be very difficult to make decisions with them. Also. Another time when it would be inappropriate to have joint legal custody is if the person has never participated in any of the decision-making and gives no indication currently that they want to participate at all in decision-making. You can have someone come in and say that they want to be an equal decision-maker for the children, but if they've never done a single thing to demonstrate that that's actually what they want to do, then it's not going to be in the kid's best interest to saddle or to constrain the parent who is careful and considerate about the children's needs with a person who isn't. Another scenario in which joint legal decision-making will probably not work is if parents have just grossly dissimilar views on the primary issues that come under a joint legal custody plan.

Speaker 1: 3:28

Some of the areas in which parents will need to work together to make decisions if there's a joint custody plan are things like which school the child will attend. Is the family religious? Is the child going to attend a church? If so, which one? Is a child going to not only attend church but also more actively pursue religious indoctrination or education? Now, how will discipline be done? What kinds of medical, dental, orthodontic, optical care, counseling will the child receive? You know, it's very easy to say in some of these circumstances. You know, just follow the doctor's recommendations. But COVID showed us that there are some real disagreements between parents. Some parents were dead set against getting any vaccines. Some parents were dead set that vaccines were going to happen regardless of the age of the child.

Speaker 1: 4:18

Another area that parents need to consider is organized recreational and extracurricular activities, including sports. Those are really big deals nowadays because extracurriculars have just gotten so expensive. It's not like what it was 30, 40, 50 years ago, where you may play some little league baseball and you have practice maybe once or twice a week and you have a game once a week. Now it's practice throughout the week. It's tournaments that can be in different states. Even if you're not like a super competitive player, you could still be on a team that travels and plays in different states all weekend. You know you have tournaments where you don't know if you're going to be playing one game or three games or four games over however many different days.

Speaker 1: 5:02

So those extracurricular activities wind up being really difficult situations for some families, economically and in terms of logistics and making decisions about how to determine which extracurricular activity a child may engage in and how many activities a child may participate in at the same time. That gets to be a big deal and a big source of contention for families. So if it's your thought that you and your co-parent just have such vastly different views on those issues, then joint custody may not work for you. But if you're in a situation in which there hasn't been abuse, in which you and your co-parent generally can work together in your kid's best interest, where you don't have widely dissimilar views on the issues that I just mentioned, then joint custody probably is a good idea, and it is the trend across the country to promote joint custody if possible.

Speaker 1: 6:02

Now I mentioned before that it's possible to have some carve-outs. So let's say that maybe the mom is a doctor and has some good information and some good ideas about the medical care, for example. Well then, maybe mom would have the primary decision-making on that. Maybe dad is really into school or church activities and wants to take the lead on those things. The mom's okay with dad doing that. If you can carve out areas for decision-making, then that's fine too. Now I also mentioned that it could be the case that you could have a joint custody claim, which is how I refer to it in Oklahoma, but one party actually has the final decision-making if there's a real disagreement.

Speaker 1: 6:48

Typically I don't consider that really to be a joint custody plan. However, there are certain benefits in Oklahoma to having a joint custody plan. So there's a specific statute that says that if a joint custody plan is in place then the parties can, without having a hearing, amend the joint custody plan really at any time and submit it to the court for entry. So having a joint custody plan in place, even if you're not going to have necessarily equal decision-making, can be a potentially good idea because it could save you a lot of time and money in the future. If you're able to work together to make some changes from time to time as the children grow, that's a good reason to have a joint custody plan, at least in Oklahoma.

Speaker 1: 7:33

I do a lot of mediations and when I mediate and this issue of joint custody comes up, I tend to have sort of a similar spiel that I give to the parent who's really insisting on having sole decision-making and the parent who is insistent on joint custody. Normally the courts are going to want to see if joint custody had worked so early on. If we're at this stage whether it's my client or if it's in a mediation where we're talking about whether we're going to try a temporary order. Whether we're going to try a temporary order, if we're going to consider having joint legal custody or sole legal custody as part of a temporary order, I tend to suggest that the parties, unless there's domestic violence, go with the joint legal custody, and the reason for that is because judges are going to want to see if it worked. If you have the opportunity to try out joint legal custody during the pendency of a case, then that can be a really good test to see if it's going to work. If you try it out and it doesn't work and you get to a final trial, then the court has the opportunity to look back and see which partner did what, which co-parent was cooperating, participating, which was being obstructionist, and that can help get a better decision at the end of a trial, if one is necessary, regarding who should be the legal custodian. Now, this field that I give to the parent who wants to be the sole legal custodian, let's say in a final order, and has dead set on it, is that if you want to be the manager of this organization that is the family, then you better do it well, because you're putting a target on your back If you are really pushing to be the sole custodian, then what that means in real terms is that you have an obligation to do everything to take the lead on all of these issues. It doesn't mean that you don't have to consult the other parent. In fact, most judges are going to require and most orders are going to require for you to, in good faith, seek out the opinion of your co-parent, to consider the information that they give you in advance of making a decision and then to make a decision. And if you decide not to agree with your co-parent and make that decision, then you better have some justification for why it was a better idea than what your co-parent wanted to do.

Speaker 1: 9:59

Lots of times people fight for the sole legal custody and then they turn into a dictator. They don't keep the other party informed, they don't seek the other party's thoughts before making a decision. They wind up hurting their position in the court's perspective. You could even wind up getting a situation where custody gets flipped because you've shown that you aren't a good, because you've shown that you're not a good sole custodian and you're not agreeing to have joint legal custody. And the court may determine. Well, if joint custody is not on the table from your perspective and you're not a good sole legal custodian, then I'm going to grant sole custody to the other parent who maybe has shown some improvement by that. If you're the person who's requiring joint legal custody, if you're just dead set on it, then I say, look, that's fine if you are dead set on this, but you have to make sure that you're going to show up, you're going to participate, you're going to do your share to get the information, to make the decisions, to participate in doctor's appointments and meetings with teachers. If you haven't done that in the past, then it's possible that you'll do it in the future. But maybe you're just not really interested in doing that, like I, for example, because of my work.

Speaker 1: 11:16

If I'd gotten a divorce when my son was less than 18 years old, then I would have said, sure, my wife should definitely, rebecca should definitely have legal custody. I don't need to have joint legal custody. She makes great decisions for our son. She's on it. She's always been on it, because I was working so hard and she stayed at home with our son. Primarily she was the one who attended the doctor's appointments and the dental appointments and did all those things she should be. The manager of that family unit probably wouldn't have fought that, and I also wouldn't have fought for equal physical custody, because I know my work schedule would not have really permitted me to do that and I know that he was thriving with her at home with him most of the time.

Speaker 1: 12:03

So, when it comes to creating a custody plan speaking now in terms of legal custody make sure that, if you're fighting for sole legal custody, that you know what that entails, that you know what's going to be expected of you, the standard to which you're going to be held, the burden you're taking on yourself without any help from your co-parent. Essentially, if you're demanding joint legal custody, make sure that you actually have an interest in participating as a joint custodian, that you're actually going to do the work, that you're going to carry your fair share of the work that needs to be done, because none of these custody orders are written in stone. Custody orders can always be modified on a change in circumstance if it's in the children's best interest. So please do not have this title of legal custodian as this golden ring that you think you need to capture. Stay focused on your child's best interest. Think clearly about the history of your relationship to decision-making for your child and your partners and then put in place a plan that makes best sense, given all of that history, all of that context, for your child.

Speaker 1: 13:16

Now the other side that we need to discuss is physical custody and visitation. Historically, who was going to be the primary custodian has gone back and forth. In some generations it was going to be mom, in some generations it was going to be dad. Just in the last 30 years we've made the switch away from what was the tender years doctrine, which was that when a child was younger in their tender Oklahoma, they changed the statute recently that said that it's the policy of Oklahoma for there to be substantially equal custody between the parents and if the court determines not to do that, then the court needs to make written findings of fact as to why it would have been detrimental to the child to have substantially equal custody. Now, substantially equal doesn't mean equal, because we presume that when the legislature puts a word into a statute that they intended for it to have meaning, to think that substantially equal custody means 50-50 in the case of Oklahoma would be to disregard and give no meaning to the word substantial. So substantially equal. It's not real clear what that means, but it's you know if you're at eight overnights as opposed to six. You know, if one parent has eight overnights out of 14 and another parent has six, it's not 50-50, but that is substantially equal. If one parent has 12 overnights out of 14 and the other one has two, that's not substantially equal. So somewhere in between there is the cutoff point for substantially equal and it's not exactly clear what that is.

Speaker 1: 15:04

So what should you think about when you're thinking about physical custody? Well, you should take into consideration, really, the practical, logistical concepts. Where do you work? What's your work schedule? Do you work overnights? If so, you're not a good candidate for primary physical custody or even equal physical custody.

Speaker 1: 15:24

Where does your child go to school and where are your homes? In relation to that, are you living in a school district? That's not a great school district. So if you're the primary custodian and your residence determines where the child goes to school, is that a good thing or a bad thing? You know, can one of you move into a better school district and up your child before or after school? Can you get your child on a bus? If you have to get to daycare, how much is that daycare going to be? If you're concerned about money, that if you don't have equal physical custody, then you're going to be paying more in child support. Well then, how much is the daycare bill going to be, and how much is that going to offset any potential gain you would have had by having more parenting time?

Speaker 1: 16:15

If it comes to the condition that you have to be responsible for the daycare expense during your parenting time because you sort of wanted something that you really couldn't handle? Where have the kids grown up? You know, if your children are older and they have established relationships in their neighborhood, if one of you can keep a home in the neighborhood, that's probably a good thing. If that's going to occur, it may cause a financial squeeze on the co-parents and it may be the case that really for acting in children's best interest, then maybe one person keeps the house and another person gets a place. That maybe isn't in the best neighborhood, or maybe you need to stay with family for a while. There could be lots of reasons why you may have a disproportionate fiscal custody schedule, at least in the beginning, if you're focusing on the children's best interest.

Speaker 1: 17:02

The developmental stage of the child is really important as well. You know, younger children, infants who may be breastfeeding, have a real biological need to be with their mother, primarily because that's their food source. But it's important for your baby to have frequent contact with both parents. So even if dad can't have overnights right away because mom's breastfeeding, then dad should have at least every other day, if not daily, visits. Dad should be learning how to care for this child, even though the child's not living with them right now. They need to have that time together to bond, because the court is going to increase dad's time.

Speaker 1: 17:43

I've seen lots of occasions where moms have really engaged in improper gatekeeping, trying to dictate when and how dad can see the child in a way that really makes no sense other than trying to assert dominance over dad. And then when they get to a hearing they say well, judge, you know he hasn't had parenting time, so he doesn't deserve parenting time now. He doesn't know how to take care of this child. And I've seen judges say well, that's your decision, you're the one who improperly kept him from the child and so now you're going to have to figure out how to make sure that dad is very quickly able, on a quick step-up plan, to get to substantially equal time in a way that's good for your kid. So you have to understand, moms, if you're breastfeeding, that doesn't mean that dad is just subject to your whims in terms of visitation, that the visitation always has to be in your sight. That's not going to work. Dad needs to be made an equal partner in parenting for the child and to be equally capable of parenting, and it is in your interest, mom, to make sure that dad has all of the resources available to be able to become an equal parent as quickly as possible, because that change can happen a lot more quickly than you would want.

Speaker 1: 18:59

Now, as the child gets a little bit older let's say toddler, not breastfeeding anymore, but not in school yet you can increase the parenting time, but you don't want long stretches yet. You know, maybe something like a 2-2-3 schedule that has your child being with one parent no more than three days at a time be inconvenient because there's lots of transitions and the schedules are sometimes a little hard to understand because they're not as predictable. Just thinking about how the schedule works as something like a week-on-week-off, for example, which is really easy to understand. But it's better for your child to have those shorter visits. So you're continuing to get frequent visitation with both parents, but a child's not away from one home for too long. At this age your children have trouble understanding what the schedule is. I mean adults have trouble understanding what a 2-2-3 is. So it helps to have a color-coded calendar where your child can understand okay, I'm going to be with dad for two days and then mom for two days, and then on these days I'm going to be with dad again. It helps them feel more secure. Also and I meant to mention this for the infants as well At this earlier age, when you have things like feeding schedules and when's the last time the diaper was changed, and sometimes there's more medications that are traveling back and forth, it's really important to keep a log of what's been done.

Speaker 1: 20:23

When's the last time the child ate, when's the last time the diaper was changed? When's the last time the medication was given? Keep a log that goes between the parents so that you can make sure that your children's needs are being met and you're working together to get that done. As your child gets older, into school age. Now you have the ability to maybe start expanding time, especially by the time a child gets to be a preteen. You're at a place where they can easily handle a week-on-week-off. They may prefer it.

Speaker 1: 20:52

Another schedule that can be put in place is called a 2-2-5-5. Well, one parent would have the child every Monday and Tuesday, the other parent would have the child every Wednesday and Thursday, and then you would alternate the weekends. So, out of every 14 days, you have equal time, 50-50 split. Often, as your children get older and they have homework, that becomes something that we have to discuss as well and agree on how you're going to handle it. You know, is one parent better at math and one parent better at English? Well then, make sure that those assignments are organized within the households so that the parent who's good at English can help with that homework on those nights and the parent who's good at math can help on that homework on the other nights.

Speaker 1: 21:36

As children and adults have more strict curriculars, they're not going to want to do exchanges at school where they have to exchange like a bag with their clothes. They're not going to want to have to take everything that they need for a transition at school. So it becomes a good idea. If you're going to have those kinds of exchanges where the children are exchanged from school you know, dropping off to school and then picking up from school it becomes a good idea to have the majority of what your child would need at both homes so they don't have to take it with them and transfer. As children get sufficiently older, they're going to start having things like cars and jobs and at that point you really need to start being more flexible with your parenting time. If you have a 16-year-old, it's good to have a baseline schedule in place. 16-year-old, it's good to have a baseline schedule in place.

Speaker 1: 22:27

But at the age of 15, 16, 17, your child's primary job is to really individuate, to become their own person, to separate from both parents. You don't want your child to have just absolute control over where they're going to be. That's too much power for them. It's not good for them, it's not good for their relationship with either of you. But it is good to start allowing them to have a little more say in where they go, if it makes sense. If visitation is going to interfere with a job or with an activity, then try to accommodate that so that they can do the things that they need to do to develop at the same time that you're also enjoying your parenting time together. Remember, at that age, when they're a little bit older, your main job is to help them become self-sufficient individuals who still want to spend time with you when they don't have to spend time with you anymore. A lot of times I see parents hold on way too tight to 16 and 17-year-olds and in that attempt to sort of control the visitation and make sure that they get every minute that they came with that child for that few years they wind up estranging themselves from their children so that when their children are 18, for a period of time they don't want to see them anymore because they realize that the parent wasn't acting in their best interest, but in the parent's best interest, trying to do what they wanted instead of what was best for the child.

Speaker 1: 23:46

It's important also to put in place a holiday schedule that really reflects the holidays that are important to you and to the children. Some parents are really into Easter. Some families are very religious and Easter and Christmas are really important holidays. I've seen other parents who don't care at all about Easter, but they love 4th of July. They just blow it out every 4th of July and that's like their family's big event for the year. Or some families are way into Halloween and not into Easter. Now, for some families, veterans Day and Memorial Day are really important. So there are just lots of different things to think about in setting a holiday schedule. So don't just go with equally split and rotate the holidays if there's a better option, if you both can get more of what you want by being a little bit more creative and having a little more attention to detail in how you set your holiday plan.

Speaker 1: 24:41

Ultimately, these parenting plans that you're putting in place are your fallback positions. The goal for co-parents is to get to the point where they are working together so well and these two households are working together so well that you can trade off days. You can be flexible, you can allow things to happen that you wouldn't maybe be okay with during the tense times when you were first getting separated. As you develop, hopefully, into that sort of co-parenting relationship, the benefit is the flexibility, but disagreements do happen. Sometimes, even acting in good faith, you may wind up just at loggerheads. You can't accommodate each other the way that maybe you usually do.

Speaker 1: 25:27

In those circumstances, having a well-thought-out, detailed parenting plan that is designed in your child's best interest is important to be able to fall back on. You can say, hey, we tried in good faith, but we're not getting anywhere. Instead of arguing about this, we're just going to fall back to what the decree says or the other custody plan says for this circumstance, and then we'll try again next time. So the goal for a custody plan, the goal for a parenting plan, is to set parameters for the default positions of what will occur on the day-to-day basis, which will be in place unless you agree otherwise.

Speaker 1: 26:07

Please do not let other things interfere with the development of a parenting plan that's in your child's best interest. Don't let concerns about how much child support you're going to pay interfere with what you know is in your children's best interest in terms of a custody plan. Don't let arguments over alimony interfere with what you know is in your child's best interest. Don't let the fact that someone has a boyfriend or a girlfriend now interfere with what, generally, you know is in your child's best interest.

Speaker 1: 26:34

There's so many peripheral issues that folks let cloud their judgment when they're preparing a parenting plan that they may really come to regret later. This is your opportunity to say yes, we're going to fight about money potentially. Yes, we might fight about property potentially. What we're not going to be unreasonable about, what we're not going to fight about, is what we both know is in our children's best interest. If you can agree on 90% of the content of a parenting plan but you just can't agree on the remaining 10%, well then you can reserve those issues for a decision by the court and move on.

Speaker 1: 27:10

If you want to try joint custody but you're afraid that you're going to come up with some issues that you just need help with, then that's when you can get someone like a parenting coordinator to help in those deadlock decisions. If you feel like joint custody could work but there's just some resentment that you're holding on to, or you have some concerns about how you're being dealt with, then maybe consider going to a co-parenting counselor to get past those issues, to deal with what's occurred in the past, to prepare yourself to move forward in good faith. Ultimately, if your children can see you cooperating in good faith as joint custodians to care for them, and that you're on the same page when it comes to their best interest, that's gold. That will set your child up for a much better future. Thank you for listening. I hope you have a great week. I'll talk to you next time.