Who gets the kids? This is usually one of the most important, delicate, and contentious parts of any divorce or separation. If soon-to-be-splitting spouses have children under 18, the parents will have to decide how to divide responsibilities for their care.
In some situations, one spouse gets full custody while the other may only be awarded visitation rights. In others, children might spend the majority of their time living with one parent, but both parents share legal custody. They are involved in making decisions on their children’s behalf, such as about education, religious studies, and medical treatment. And in other situations, parents may divide time and responsibility equally.
As you might imagine, working out these details rarely happens without conflict. Divorce is a difficult process for everyone involved, and emotions can run high. Sometimes soon-to-be-exes will try to “one-up” each other by “winning” custody battles. Children may also have opinions about which parent they prefer to live with, and they may not be able to understand what outcome would be best suited for their needs.
When there are minor children involved in a divorce, courts usually require soon-to-be-ex spouses to come up with a co-parenting plan. The plan will be reviewed and approved by a judge. In contested divorces when spouses cannot agree on how to share responsibilities for their children, the judge will weigh the facts and decide what the plan will look like, taking into account what is best for the children.
What Co-Parenting Plans Look Like
In general, the more specificity you can work into a co-parenting plan, the better. An experienced attorney can help you make sure you have all of your bases covered. A solid and well-drafted plan will help ensure that your children's lives after a divorce can proceed smoothly and that they will continue receiving healthy parental support.
Along with the major issues such as how physical custody will be divided and whether one or both parents will have legal custody, a co-parenting plan should also address questions like when exactly visitation periods should begin and end, how transfers of children from one parent to another will take place; how far apart both parents can live from each other, and whether each parent will be entitled to phone calls and Facetime with their children when they are in the other parent’s care.
A major component of the agreement will also be a “parenting schedule,” including whether there is also a “seasonal parenting schedule,” a “vacation schedule” and a “one-time event schedule” for special situations.
Plans also should include contingencies for emergencies, such as if one parent is unable to pick up a child from school or an activity as scheduled, or if a non-custodial parent needs to seek urgent medical treatment for a child and can’t get in touch with the parent who is primarily responsible for the child’s welfare.
Another issue worth thinking about, and possibly building into your plan, is how much communication both parents should have regarding their children's day-to-day activities, including how and when information such as school report cards should be shared. You may also want to decide how much time both parents may be permitted to weigh in on daily matters such as whether a child can participate in a sport or go to summer camp.
It can be very hard for parents to foresee, in the midst of a divorce, all of the possible issues they may face when they are co-parenting. That’s why it is important to have good legal counsel who can advise you on these concerns.
If parents can’t agree on a co-parenting plan, the court may appoint a lawyer who acts as an advocate for the children while the plan is negotiated. The divorcing litigants pay fees for an Attorney for a Child. However, the Attorney for the Child does not represent either parent. That means that there is no legal privilege covering any statements either parent might make to that attorney. Nothing they communicate to the Attorney for the Child is confidential.
What if a Spouse is an Unfit Parent?
Sometimes deciding responsibility for children isn’t a matter of preference — there may only be one parent who is fully capable of properly caring for them. Problems such as drug and alcohol dependency, which may have worsened in the lead-up to a difficult divorce, mental illness, and tendencies to engage in physical or emotional abuse may be reasons for courts to determine that one parent should not have custody of minor children.
When making these determinations, judges will look at the specifics of the situation. In some cases, people who are considered “unfit” to be custodial parents may still be awarded visitation rights. But parents who are abusive or neglectful may very well be denied visitation. Violations of court orders and refusal to follow a co-parenting plan may also be reasons that someone loses the right to have partial custody of their children or visit them regularly.
Can Co-Parenting Plans be Modified?
Yes, it is possible to make changes after-the-fact to a co-parenting agreement if the situation changes. However, ex-spouses must follow the existing co-parenting plan until the changes are approved.
One or both ex-spouses can seek a modification from the court if one or both of their living situations changes substantially, if an ex-spouse loses a job or faces other kinds of significant financial changes if there are concerns about violence, criminal activity, substance abuse, or if one ex-spouse remarries. Modifications can also be sought if one parent fails to follow the co-parenting plan, or otherwise fails to act in the children’s best interests.
Experienced legal counsel is also important at this stage, as you may have to file a petition with the court and possibly go to trial to secure a modification.
If you need advice on a co-parenting plan or making modifications to a plan, we may be able to help. Bikel Rosenthal & Schanfield LLP is a leading divorce and child custody firm in New York, specializing in complex and high-net-worth divorces. Connect with us online or call us at 212.682.6222.