The Legal Zone (S1:E4): Parental Rights – Timesharing and Parenting Plans

Transcript

Introduction

Good afternoon, everyone. I'm Regina Campbell, and we're here bringing you The Legal Zone. This is now our fourth episode of Season 1. Hopefully we've been bringing you some content that's helpful for your business and family law needs, and we intend to bring you additional content in the future. We're proud to say that we are finally on Apple Podcasts, so you can go ahead and listen to these podcasts there, as well as on Buzzsprout, and you can also look at past podcasts on our YouTube channel. We invite everyone to become a subscriber and to support us on our social media outlets. Hopefully we're providing good information.

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Parental responsibility, timesharing and parenting plans

So today we're here to talk about parental rights, timesharing and parenting plans. Most states use terminology like custody, custodial parent, or non-custodial, non-resident parent. Here in Florida, even though we understand what those terms mean, we abandoned their use in the statute some time ago. We use parental responsibility and the timesharing rights of the parents. That can be a little confusing, and those two particular rights are usually put in what we call a parenting plan. So here's a little bit of understanding about the differences between those three terms, because that's often something that confuses people. It sounds like it's all the same thing to some extent, but there is a division.

Shared and sole parental responsibility

To understand what Florida means by parental responsibility: parental responsibility usually means the parties' rights to make decisions on behalf of their children. In most cases, you're going to have shared parental responsibility, even when one parent potentially exercises significantly less timesharing. Sometimes, however, courts can give sole parental responsibility, or decision making, to one parent if they feel the other parent is just not capable of doing so, or it's not in the best interest of the child to allow that other parent to do so.

The court can also potentially split it. In other words, one parent might make religious decisions on behalf of the children, and the other makes medical decisions. Or they might share the other decision-making issues, but one parent has the right to make decisions about the child's religious or medical needs. So there's a little bit of everything for everyone, depending on the circumstances. I find, though, that most of the time when a parent is given sole parental decision making, it's usually because the other parent is either not present, or unfit, or not able to assist, and it might be detrimental to the child. So it's something to keep in mind. Those parental decision-making rights are put into the parenting plan.

Participating in the children's lives

Even if one parent makes major decisions on behalf of a child, absent some kind of domestic violence circumstance or potential harm to the child, both parents usually have the right to go see the children's shows and participate in their activities and the extracurricular activities they choose. These are all the types of things you would see in a parenting plan.

And you'd probably think to yourself, "Regina, why do we need this in a parenting plan? Isn't it just obvious?" Unfortunately not. There are times when parents have animosity between each other, or they're just not happy with someone's new girlfriend or boyfriend. They will often exclude the other parent from activities, or not tell them about the activities, to punish them for not being attentive or not being part of the child's daily life. They don't say, "Hey, Johnny's got a soccer game this weekend," or "Annabelle has a ballet show this weekend." So parenting plans make sure these types of rights are in a plan and actually enforced through a court order. They become part of the final judgment, the decision on any of these issues between the parents.

That's there for a reason. Each parent is usually required to share information with the other. Unfortunately, it's necessary sometimes when you have parents who do not want to continue to talk, or to co-parent with the other parent, as a form of punishment. So parenting plans have these provisions that make it obligatory to do so in a court order, and they set out the rights of the other parent. "Wow, you need to know about Annabelle's ballet session, and I didn't have to tell you." Ultimately, more often than not, the court requires these types of provisions in parenting plans to ensure that both parents have the ability to participate in the children's lives. And of course, it's up to the parents to participate as well.

But we don't want to make this more difficult. Most courts agree, and I agree as a family law attorney: children love to see both parents sitting in that audience. You can't make someone be a parent, so to speak, but you don't need to make it more difficult either. Ultimately, it is the children who suffer when that happens, and it's rather unfortunate, because it can stick with them for a long time.

So courts are very protective, and would particularly prefer to see comprehensive parenting plans that address the types of issues that may already exist. More often than not, in a paternity suit or some type of divorce, when you're establishing timesharing rights and parental responsibility, you can already see how the parents are going to be co-parenting. Often you'll need to put additional provisions into a parenting plan to make sure one parent is not put at a disadvantage, to the detriment not just of that parent, but of the child as well.

Access to medical and school records

So those are examples of parental responsibility: major decision making on behalf of the children. But there are also other things that go into the parental responsibility section, including requiring both parents to share information with each other about the child's life and the child's activities.

It also gives parents the right to look at their children's medical records, absent, of course, circumstances in which you must limit a parent's rights, again, in cases of abuse or domestic violence. For the most part, parents need to make sure they have those rights, particularly fathers who have not been established as the child's father ahead of time or through a formal process. They want to make sure their rights to see their children's educational and medical records are preserved in the parenting plan, in case a third party ever questions whether that parent has the legal right to see the information.

These are all things that help even when you don't have parental responsibility or decision making. Let's say on medical decisions: more often than not, the parents are still allowed to see the children's medical records and school records, absent circumstances that would be detrimental to the children.

Travel out of state and out of the country

So that's parental responsibility. It talks about the different requirements or obligations between the parties, which might also include what happens if they plan on leaving the state. What kind of notification is required? What kind of permission from the other parent is required? And the same thing if you want to leave the country: what kind of written permission, responsibilities and conditions are required in order to take the children outside the country?

More often than not, taking the children out of the country can be a very serious issue that some parents have to give serious thought to, particularly if they're going to a country where it might be hard to get the children back in the event they become a bargaining chip, or unfortunately, the other parent is being difficult. So you want to give particular consideration to the parts of the parenting plan that talk about travel outside the country if you have a concern like that. For instance, it's very difficult right now to get children back from Venezuela if they were taken there. There's limited court access and judicial process, or protection of the other party's rights, especially a party who might be in the United States or another country.

So it's something you want to give considerable thought to. And keep in mind that even if a judge requires the party to bring the children back, once the children are in another country, it's a whole new ballgame. Technically, the court's order here has no validity, so to speak, maybe in Venezuela. Of course, countries under the Hague Treaty show comity to each other, and they follow the procedures and requirements of the Hague Treaty for sending the children back in certain circumstances, so that what they call the home state of the child can make a decision as to what's going on with custody. But unfortunately, in particularly hostile or difficult countries that are under political upheaval, this may be a more difficult process. This has to be given considerable thought when writing your parenting plan if you have one of these circumstances.

Daily communication with the other parent

Another example in a parenting plan, a cross between the parental responsibility concept and timesharing, is which parent is going to be responsible for making sure the children speak to the other parent, or giving that parent access to speak to the children on a daily basis. That's particularly important if that parent doesn't spend much time with them, or if the other parent travels. The courts are looking for parents to facilitate communication with the other parent.

So often we will set up a time. It depends on the circumstances and the age of the child or children. You might set up a FaceTime call every day with mom or dad at 5:30 in the afternoon. It might be 2 o'clock in the afternoon. It might need to be after practice, when they come back at 7 or 8 o'clock. It just depends on the circumstances. Every family is unique, and of course every child is unique, and every child's schedule is unique. Those are the types of things that are also going to be considered in parenting plans.

Timesharing schedules and overnights

That's another hybrid, and we'll segue into what timesharing is. Timesharing is basically how much time the children are going to spend with mom and how much time they're going to spend with dad. Or mom and mom, right? Or dad and dad, depending on your circumstances.

You hear people use "50-50" all the time: 50-50 timesharing. That might be one week with one parent, one week with the other. However, due consideration has to be given to the children: their temperament, their personalities, their ages, what's going on in their lives. Some children do not do very well with one week on, one week off, particularly because they're not used to spending so much time away from the other parent. One of the parents may live further away, while the other is close to their friends, so they can see their friends in between timesharing. So there's definitely not a one-size-fits-all in family law. Depending on the child, their temperament, what they're going through and their age, they may do better with a 4-3, 3-4 type of timesharing plan, so to speak. That means they might have four overnights with mom and then three overnights with dad, and then you flip it.

Now of course, there are circumstances where it's 80-20. In other words, the children may be with one parent 80% of the overnights. Specifically in timesharing, we talk about overnights, and we calculate the overnights, not just the day stays, the time the other parent spends with the children during the day, particularly because it's also a function of child support. When you go to figure out child support, the guidelines look at overnights and how many you spend with each parent. That's one of the reasons you hear me talk about overnights.

And of course overnights are significant. You have to make sure the parent taking the children overnight is going to be doing their homework, giving them a bath, making sure the children go to bed in time for school, and waking up with the children to go to school the following day. These are things you want to take into consideration when you're talking about overnights, where the children will do best, and what is best for the children. Some parents, for instance, might work late at night. They might be a nurse who works the night shift, so to speak. So it might be harder for that parent to exercise more overnights.

Flexibility without game playing

However, this is where the other parent can show flexibility and try to adapt to the other parent's schedule, to ensure the children can see the other parent as much as possible, or whatever might be in the best interest of the child or children. Remember, most of the time, even though there may be difficulties, and a lot of difficult legal arguments and potentially game playing, which unfortunately is sometimes the reality with timesharing plans, the children do not know the difference. Often they want to see both parents, or they want to have both parents in their lives.

Now, that doesn't mean you bend and twist to allow the other parent to see the child at their whim, or when they feel like it and when it's convenient, because that's also not a parent who is potentially going to be a stable influence in the children's lives or allow stability for the children. There's a difference between being flexible and completely giving in to whatever that other person needs, which is also not an optimal timesharing plan or a way to raise children either.

So these are things you need to consider about what goes on in the children's lives and the parents' lives, and try to be as flexible as you can for the children. That does not mean you're required to bend over backwards and let the other party play games with you, your schedule and the children, harassing you through the use of timesharing. I'm saying this to you very frankly, because we all know this actually happens, and I implore parents on both sides to take the children out of the middle. Consider what's best for them and do what needs to be done. If you and your husband are no longer together, or you and your boyfriend or girlfriend are no longer together, and you had to separate and you have a child, the child does not need to be stuck in the middle. That needs to be taken into consideration, and the child certainly shouldn't be used as a pawn or a bargaining chip either.

Pickups, drop-offs and daily routines

Timesharing can also include, for instance, which parent is going to do the pickup and which is going to do the drop-off. You might agree that the parent who is starting their timesharing is always going to do the pickup, or you might do it the other way: the parent ending their timesharing drops off the children at the other parent's house.

In the parenting plan you'll also discuss, as part of timesharing, who's going to take the children to extracurricular activities. If you have the child or the children that afternoon, you might be obligated to make sure the children get to their extracurricular activity that day, or some kind of school event, that they do their homework, and that they're bathed. These are the types of things we often put into parenting plans, as part of timesharing and/or parental responsibility, when it comes to homework and bathing, to ensure that each parent is creating a stable, fairly consistent environment for the children.

Structure and respecting each other's parenting style

Now, of course, I have parents who think, "Well, I'm a little more hands-off. I let the children have less structure," and the other parent might insist on more structure. I can't tell you one is better than the other. It really depends on the child. Most often, structure seems to work better with children. However, I've seen many children thrive on a less structured schedule, depending on the personality of the child, and particularly depending on what they're going through in life. Remember, the children are also going through a lot of transitions, especially if this is something new, whether it's a paternity proceeding or a divorce.

So I can't tell you which is right. What I can tell you is that the best thing for the children is that you both communicate, and that you try to have a similar lifestyle and schedule at each other's houses. Now, I do think it's important to stress that one parent may do things a little differently from the other. Parents have to be very, very careful. This is often actually a provision we put in parenting plans, because some parents do not do this: they need to encourage, "Well, that's mom, and that's okay. Mom's got her way of doing it, and that's fine. Dad does it this way." But in a very productive way, because if not, what you're potentially doing is demeaning or degrading how that other parent does it, saying they do it wrong or that the other parent is ridiculous. We have to be very careful with the words we choose.

So with children, it's okay for you to be different. The best thing is to have schedules as similar to each other's as you possibly can, co-parent together, and try to have a unified front in all your communications. But of course there are going to be differences, particularly when there are differences in the styles and personalities of the parents, and that doesn't have to be a bad thing. Each parent should always encourage the children to take what's great: "Hey, mom does it that way. Look, it works well this way for this reason. Dad doesn't do it the way mom does because he likes it this way, and he has a different job, and this is the way we like it, the way we eat at the table." Encourage the idea that neither parent is right or wrong, so to speak, and that everyone has their own way of doing things, so the children do not feel like they have to pick between the parents' styles or between the parents.

Other parenting plan provisions and long-distance schedules

So these are just some tips to help you create what, ultimately, a parenting plan is. The parenting plan will contain all the rights between the parties and the children, and what you've agreed to do and not do.

Other types of provisions in parenting plans may be that neither party is going to introduce the children to a significant other until, for instance, they've been dating that significant other for at least six months or a year. Other provisions may be that if the parents cannot agree on a certain vacation spot, they'll go to a co-parenting therapist first, or potentially mediation, before bringing the case before the court for modification or for permission.

I've seen pretty much a little bit of everything. I've seen parents who travel a lot, where the children are going to Europe for three months to spend time with their father. Of course, there have to be special provisions for traveling: how the children get there, and who covers those costs. That's particularly so where, let's say, the father lives in Texas and the mother lives in Florida. Due consideration and flexibility have to be given to when that parent can see the children. Often that parent will have more of a right to see them during holidays and summer visits. These are the types of schedules that are like a relocation schedule, or a long-distance timesharing plan, that needs to be put together in the parenting plan and discussed. Now, even if a parent lives far away, it doesn't mean they can't partake in parental decision making with the other parent.

Closing

So these are interesting things, and like I said, it's never a one-size-fits-all in family law. Every family is unique. Every family needs due consideration and understanding. These are the things we want you to take from today. And of course, time and conversation need to be spent developing these parenting plans between the parties, whether it's between the attorneys or between the parents themselves, which is always preferable if the parents can talk. Because ultimately, when the attorneys are no longer there and the judge is not there anymore, the parents are still going to need to be able to talk with each other and help raise their child or children together. So hopefully this helps steer parents into a healthier transition and planning that works for everybody.

We hope this has been helpful, and we wish everyone well. Summer's almost over. Enjoy it before it's gone. Enjoy the children: squeeze them, squish them, kiss them, whatever you need to do, a little bit more. School is getting started again, which I know some people are also looking forward to. This has been a very tough year. But enjoy the summer; it's not over yet. We want to wish everyone a happy summer.

I believe we'll be doing the next podcast at the end of August or in September. Please stay tuned for any notification of a new podcast. We welcome you to come see us, whether it's live or in the recording afterwards. Become a subscriber of our Apple Podcasts channel, I guess we call it, and also our YouTube channel. You can also hear us on Buzzsprout. Finally, we ask that you become a subscriber to our newsletter and follow us on all social media sites, where we release our blogs, our posts and our podcasts as well, and where you can find valuable information. It's a pleasure. Thank you, everybody. Take care.