Arbitrating the Parenting Relationship after Divorce - Essay Example

Overview: Arbitrating the Parenting Relationship after Divorce This essay introduces the concept of the co-parenting agreement for divorcing parents.A co-parenting agreement in this sense is much broader and more detailed than agreements usually set forth in divorce decrees, and while most states recommend some kind of agreement between divorcing parents that outlines the responsibilities of each, the co-parenting agreement begins by assuming parents are equal partners in the future relationship, and that each should contribute equally to the children’s upbringing both in time and in legal matters such as child support, transportation, and providing medical insurance. While encouraged by the family courts and state laws, a detailed co-parenting agreement is not designed by the courts; it is designed between the parents through an arbitrator if necessary. This essay looks first at a brief history of laws regarding child custody, and then presents four sample parenting agreements. Finally, the essay notes particulars with the language used by lawmakers and in parenting agreements, showing how gender-neutral language lends strength to the father’s position after divorce. Co-parenting is far more than a legal concept. It is a new way to structure a family that could potentially be divided by divorce. Even though the parents are not husband and wife to each other, they remain parents of any children, and must be able to exercise their parenting without too much interference from the other parent, and with the support of the other parent. Children develop in healthy ways when they have consistent parenting, whether their parents are married or divorced. Maintaining consistency requires divorced mothers and fathers to develop new ways of interacting with each other that are just about the kids, not their own adult disagreements. This is the essence of co-parenting, and when mothers and fathers cannot agree during a divorce, a co-parenting agreement may need to be drawn up through an arbitrator that provides structure for the continued relationship. Custody agreements that arise from divorces have many legal terms associated with them which often overlap: sole custody, joint custody, sole physical/joint legal, visitation, and many other variations of legal terms. None of these terms speaks to co-parenting; in fact, co-parenting is avoided by the courts because it requires a complex interaction between divorced parents which the court cannot be expected to regulate. Because courts have avoided this regulation and left it entirely up to parents to figure it out, tension and disagreement between conflicted mothers and fathers can continue for years because there is no legal remedy in place. Understanding the legal terms is helpful to understanding co-parenting, however, because for many divorced parents, the letter of the decree spells out how they handle their shared parenting duties—or don’t handle them, in some cases. Standard Possession Orders simply outline which parent has primary physical custody of the child and the days and times the non-custodial parent can have access. Standard Possession orders are incredibly and unnecessarily complicated, and are introduced by the phrase: The parties shall have possession of the child at any and all times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specific terms set out in this Standard Possession Order (Texas Family Code, Section 153.311). This language usually ends up with every-other-weekend-two-weeks-in-the-summer wording for the non-possessing parent (typically the father). Unfortunately, most custodial parents forget about the first part (“any and all times mutually agreed to”) and restrict the non-custodial parent to access only during the days and times set down in the decree. While on the surface it might appear this language is gender-neutral and allows for true co-parenting, boilerplate language has “little influence on post-divorce outcomes” (Kelly, Redenbach, and Rinaman, 2005, p. 26). In approximately three-quarters of divorces, the mother is awarded sole physical custody (Connell, 2008; Kelly, Redenbach, and Rinaman, 2005), and that award is accompanied by a Standard Possession Order. Under the Standard Possession Order language, there is no presumption of joint or shared custody. The parent with primary custody can dictate to the non-custodial parent how much contact he has with the children. When parents can agree, the legal document can essentially be thrown away and the parents act like parents. In cases of conflict, divorce decrees are not enough, and co-parenting agreements must come into play that carefully outline every detail of the future parenting relationship. The Co-Parenting Agreement: What Does It Say? Several factors work together to make a co-parenting agreement reasonable and applicable to the parenting relationship after divorce. First, parents must understand that even though they are divorced, they are still both parents of the children. Second, parents must be able to work together on timesharing and ensure that each parent has access to the children. (Shared access does not mean equal access, as in a 50-50 split (Connell, 2008). It simply means both parents are presumed to have access. This can include “first right of refusal” language giving the other parent the presumption of care giving for every moment the children might otherwise spend with daycare providers, grandparents, babysitters, etc. if the other parent must engage such services.) Third, consistency between households is vital to meeting the best interests of the children. Parents must agree on a common set of rules which will be applied by both parents in all situations. Using sample parenting agreements found at DivorceNet.com (2004), ParentingAfterDivorce.com (Stahl, n.d.), SPARC (n.d.) and SingleParents.about.com (Wolf, 2007), several things can be inferred about how statutes are put to use by parents who are formally creating a parenting agreement. Each of these samples discusses in great detail the exact days and times each parent will have physical custody of the children, such as saying, “…every Thursday from the end of the school day or 5:00 p.m., until Friday morning at the start of the school day or 9:00 a.m.” (DivorceNet.com, 2004) or laying out a 7-day schedule with checkboxes indicating times for both parents (Wolf, 2007). All four plans detail holiday schedules (odd/even year switching), birthdays, special days, and summer vacations. Each explicitly states there will be no deviation unless by prior agreement between the parents, and in the case of the DivorceNet.com plan and the SPARC plan, that must include written agreement (DivorceNet.com, 2004, SPARC, n.d.). None of these plans really varies much from the boilerplate Standard Possession Order every-other-weekend-two-weeks-in-the-summer structure; they simply go into detail and start from the basis of shared physical custody. It’s up to the parents to decide on the actual amount of time the children spend with each of them. What these plans do over and above boilerplate language is provide details on how the parents will communicate with each other and with the children. The most user-friendly plan (Wolf, 2007) keeps communication wide open: the parents agree that they will share major decisions and take personal responsibility for day-to-day decisions, and that the children may talk to the other parent by phone or email during the other parent’s time. The psychologist’s plan (Stahl, n.d.) uses a few more words to describe the same things: Major decisions … shall be decided by both of us after adequate consultation has occurred between us about the developmental stages of the children, the welfare of the children, the best interests of the children, and, so far as possible, the desires of the children (para. 9). Stahl also recommends the use of a “communication book” (para. 57) that the children carry back and forth and the parents use to send notes. The SPARC plan goes into even greater detail about how parents are allowed to communicate with each other: Mother and Father are restrained and enjoined from harassing, annoying, striking with hand or object, threatening, assaulting, using verbally abusive language, or molesting the other Parent … either in the absence of said children, during telephonic communication, … by written word, or at ANY other time (para. 25). This plan is for high conflict divorces, as is the Stahl plan. One very important distinction between these four plans and the boilerplate divorce decree language is that the samples all provide “first right of refusal” language. This simply means that the parent who has the children must first ask the other parent before engaging the services of a third party for child care, if that parent must leave the children for any reason (Wolf, 2007) or for more than 48 hours (Stahl, n.d.; SPARC, n.d.). The first right of refusal clause is important because previously, residential parents could go on vacation, leave the kids behind with grandma and grandpa, and never let the non-resident parent exercise his parenting rights. This created the mental idea that the non-resident parent was a “visitor” rather than a parent who could care for his children in their mother’s absence. While it may seem like a small point of language, in actual fact, it is an important recognition of both parents’ ability to parent under all circumstances. In addition, the SPARC (n.d.) plan provides that day-care expenses will be split 50-50 by both parents if either has to engage day-care because of work. Finally, these four sample plans provide specific guides on sharing transportation costs, medical costs, tax deductions, child support, and so on. In boilerplate divorce decrees where the mother was awarded full physical custody of the children, she typically was not held responsible for sharing transportation (the “visitor” handled transportation to and from the “resident” household, meaning in practice that the father picked the children up and brought them home each and every time). Medical insurance premium costs and non-paid expenses were assigned to the father. Tax deductions typically went to the mother. Child support was calculated using the non-residential parent’s income and paid to the residential parent in the form of a monthly check. Under new language, transportation is shared, with each parent picking the children up at the start of his/her parenting time and the other parent picking the children up at the end of the parenting time (Stahl, n.d.; SPARC, n.d.), making transportation costs shared. Medical insurance premiums are the responsibility of both parents under a co-parenting agreement (as evidenced by all four of these sample plans). Each parent must use employer-provided health insurance, if available, and premium costs are split 50-50. Out-of-network costs for elective procedures are handled by the parent with physical custody at the time, and co-pays and other necessary or non-reimbursed costs are split 50-50.Under all four co-parenting plans, tax deductions are split between mother and father if there are multiple children or on an odd/even year basis if there is only one child. When co-parenting agreements mention child support in any way, it is calculated using both parent’s incomes and presumed contributions to the child’s upbringing (DivorceNet.com, 2004) or the issue of child support is set aside and the parents agree they will each pay for the children’s expenses while in their custody, and pay no child support to the other parent (Stahl, n.d.). Only these two out of the sample four examined here addressed the issue of child support. Two of the sample plans mention stepparents. The Stahl plan (n.d.) simply says both parents have the right to develop romantic relationships, and the other parent cannot interfere with those developments or limit the rights of the stepparent, whether remarried or not (para. 12). Only the sample plan from the father’s rights advocacy group details the rights and responsibilities of stepparents (SPARC, n.d.), including shared responsibility for transportation and medical care; access to school and healthcare information; and the right to “touch, hold, carry, dress, feed, bathe, make purchases for, administer necessary medications to, and discipline said children” (para. 23). While a co-parenting agreement is obviously between the mother and father, remarriage by either one is almost inevitable, and the stepparent’s rights and responsibilities must be dealt with to avoid disagreements between the parents and tension with the children. Shifting Focus: Gender-Neutral, Shared Parenting Agreements There is a general movement in family law toward using inclusive rather than divisive language when drafting divorce decrees: rather than saying “joint” the word is changing to “shared,” for instance, and rather than dividing physical custody (where the child lives most of the time) and legal custody (responsibilities of the parents, including financial, medical, and information sharing) into two separate categories, family courts are moving toward the presumption that both parents are equally responsible for the physical, financial and legal well-being of their children (Connell, 2008). These are positive changes for both fathers and mothers. Changing social ideas from one parent is a better parent to both parents are good parents begins with the language we use to talk about child custody and parenting. Kelly, Redenbach, and Rinaman (2005) say that laws were reworded in the 1970s to reflect more gender neutral language, and by the 1980s most states had passed laws making joint custody an assumption. They point out the difference between joint legal custody and joint physical custody, and say that joint physical custody generally implies parents have an ability to work together as co-parents after the marriage is dissolved. Roy (2008) details how Florida law was modified by the 2007 Parenting Bill, which removes divisive language such as “primary residential parent” and “secondary residential parent” and simply calls parents, parents (49). Florida also introduced the concept of the “parenting plan” which outlines overnights and time-sharing and holidays, as well as parental responsibilities (much like a more user-friendly version of the Standard Possession Order). Roy states that previous language of primary and secondary had only been meant to define the child’s future residence for school district purposes, but in short order the phrasing gave rise to the idea of “visitation” and the every-other-weekend-two-weeks-in-the-summer system that supposedly ensured a (typically) father’s role in his children’s lives after divorce (50). It is unfortunate that the new Florida law, while an improvement over previous phrasings, still does not set up a statutory presumption of true co-parenting in which both parents are required to share custody, responsibility, and information, and to cooperatively raise the children despite the fact they are divorced. As will be detailed in the next section, these co-parenting agreements are a strong foundation upon which to build a future parenting relationship. Important Points in the Language Used by Co-Parenting Plans Each of these sample plans uses different words to refer to the parents in question, such as “respondent Father” and “petitioner Mother” (DivorceNet.com, 2004); “we,” “us,” and the children’s names (Stahl, n.d.); “biological Parents” and “biological Children” (SPARC, n.d.); and “mother” and “father” (Wolf, 2007). Since each of these sample plans is provided by a different source (lawyers, a psychologist, a fathers advocacy group, and general information, respectively) the language is modified to reflect the “who” and “why” of the agreement. This language also reflects the Florida statute changes mentioned earlier, because those statues turn the parenting agreement into something created by parents, not courts (Roy, 2008). Conclusion: The Importance of Arbitrating Parenting Plans Co-parenting is vital to the mental and spiritual health of children after divorce. Consistent rules and clear boundaries relieve much of the tension that happens between parents who cannot agree. Issues such as parental alienation can even arise in very bad situations, where one parent is completely banned from contact from the other parent, but not by court order (SPARC website, n.d.). Parents must sometimes be reminded they are parents, not warring adults, and having a clearly-defined set of rules does reduce the chance of argument. All divorce decrees, whether created out of boilerplate language or through a carefully-worded and official co-parenting agreement, are created inside a particular moment in a family’s life: the key transition point between separation and final divorce (Kelly, Redenbach, and Rinaman, 2005). The parents’ ability to agree before a co-parenting agreement is drawn up affects their ability to agree after. The co-parenting agreement is simply a snapshot of the parents’ relationship at the time it was drawn up. Change happens. Parents switch jobs, move to another city, or get remarried. No legal document regarding co-parenting can allow for all possibilities, and thus language is left vague: parents must agree to agree to change in the future. Unfortunately, once the parenting relationship has been arbitrated by legal means, it often needs that same arbitration again (Kelly, Redenbach, and Rinaman, 2005). The law does allow for parents to seek relief through the court system if the other parent violates the parenting agreement (Roy, 2008), but if they are still in a high-conflict relationship with the other parent, they must go back to court or to an arbitrator to make even the simplest adjustments. Parents typically bargain for custody arrangements, and when there is a high degree of discord before the divorce, there is less likelihood the courts will award or the parents will agree to custody arrangements which require them to work together (Kelly, Redenbach, and Rinaman, 2008). “[It] does not appear that parents in high-conflict marriages and divorces use joint custody as a splitting-the-difference approach to conflict resolution” (40). Restated, this means that warring parents usually end up with sole custody arrangements. Most divorcing parents are not in such high-conflict relationships, and co-parenting agreements help them to focus on the best interests of the children while minimizing their own, adult conflicts. Co-parenting is about the parents working together to raise the children even though they happen not to be married anymore. Obviously, in the best of all possible worlds, parents would just set aside their personal, adult differences, and concentrate fully on the children, cooperate with each other, and just basically act like parents. Co-parenting cannot actually be arbitrated, although having a legal document to refer to lessens disputes. It could be said that parents who could agree might not get divorced in the first place, thus legal documents are absolutely necessary to protect the rights of children and both their parents. Divorce laws and child custody laws change with the times (Kelly, Redenbach, and Rinaman, 2005; Connell, 2008; Roy, 2008). Children were chattel 150 years ago; the “tender years” doctrine was in full force 50 years ago; now, father’s rights groups are pushing to have fathers recognized as legitimate parents to their children and not just visitors (SPARC, n.d.). Boilerplate divorce decree language is no longer sufficient to address the realities of parents and children. Gender-loaded language in state laws is no longer appropriate. The automatic presumption that the mother is the best parent for the children is no longer appropriate. It is no longer appropriate to place the father in the position of a visitor who pays to see his children every other weekend. The word “joint” has given way to the word “shared,” and “physical custody” and “legal custody” are no longer clearly marked, putting one parent at a disadvantage in the children’s lives. Little by little, the differences between parents are being dissolved in legal language, and little by little, we are coming to understand that parents are just parents. References Connell, M. (2008, Spring). Changes in the wind: Parenting assessment in family dissolution matters. Journal of Psychiatry and Law, 36(1): 9-40. Retrieved 23 April 2009 from Academic Search Premier EBSCO host. DivorceNet.com (2004, 17 July). Sample parenting plan. Retrieved 23 April 2009 from http://www.divorcenet.com/states/missouri/sample_parenting_plan. Kelly, R., Redenbach, L., and Rinaman, W. (2005, Spring). Determinants of sole and joint physical custody arrangements in a national sample of divorces. American Journal of Family Law, 19(1), 25-43. Retrieved 23 April 2009 from Academic Search Premier EBSCO host database. Roy, E. (2008, November). The end of custody in Florida: finally parents are just parents. Florida Bar Journal, 82(10), 49-53. Retrieved 23 April 2009 from Academic Search Premier EBSCO host. SPARC (n.d.). Sample shared parenting plan. Retrieved 23 April 2009 from the Separated Parenting Access and Resource Center website, http://deltabravo.net/custody/pplan5.php. Stahl, P.M. (n.d.). Sample parenting agreement for a medium level high level conflict couple (school age children). Retrieved 23 April 2009 from http://www.parentingafterdivorce.com/books/plan.html. Texas Family Code, Section 153.311 (2007). Standard possession order. Accessed 23 April 2009 from http://www.raggiolaw.com/stanposs.html. Wolf, J. (2007). Parenting plan worksheets. Retrieved 23 April 2009 from http://singleparents.about.com/od/successfulcoparenting/ss/parenting_plan.htm. Read More