The way the parties handle their parenting plan will be an indicator of how expensive and lengthy the litigation will be. Often times, parties take extreme positions, usually to gain an advantage in negotiations. In the long run, this always backfires.
If the parties do not agree within 75 days of the filing of the last pleadings (N.J Court Rule 5:8-5), the case is referred to mandatory mediation.
If mandatory custody mediation fails, a custody evaluation is ordered.
Based upon the results of the evaluation, a judge determines what will happen and neither party is given further input.
The judge's order is then imposed upon them, and typically both parties will be very dissatisfied with the result.
Cooperative or Parallel Parenting
There are three different parenting relationship styles post-divorce:
- Cooperative Parenting - The best solution for the children. Your level of conflict with your former spouse is low and you can talk to each other about your children's needs in a healthy way. Generally speaking, you agree on most parenting style and parenting role issues and have few arguments about your children's lives.
- Conflicted Parenting - This is the worst situation for your children. Your level of conflict with your former spouse is high. It is characterized by some or all of the following:
- Continued hostility from the marriage;
- Different perceptions of parenting and child-rearing roles;
- Concern about the other parent's abilities as a parent;
- One or both of the parties are not resolved of the inevitability of the divorce;
- Contested legal custody issues;
- Personality issues that stimulate conflict.
The parenting plan in this situation needs to be lengthy and detailed giving each parent less room to manipulate or feel manipulated by the other
- Disengaged Parenting - This is the intermediate solution for high conflict couples. They disengage from each other and embark on a process of Parallel or Segregated Parenting. The parties agree:
- Not to communicate with each other about minor issues;
- To communicate via email and letter to avoid impulsive comments;
- Not to share communications with children or be sarcastic;
- Not to tell the other parent how to parent;
- That there is more than one right way to parent;
- To focus on doing the best job of parenting during their own time with the child without criticizing the other parent.
Obviously, before a parenting plan can be created, each party must honestly evaluate which of the three parenting relationships is in effect. If there remains any residual anger between the parties, the parenting plan can and should address additional issues that arise out of conflicted parenting to allow the parties to initially disengage and move toward cooperative parenting in the future. A desire over time to work away from segregated parenting toward cooperative parenting is in the best interests of the children.
Even when the parents are cooperative, a parenting plan, should take into consideration not only the way thing are now, but how things should be in the future since the needs of children change as they age.
Planning for What you Want
Here we address the items and issues you should consider for inclusion in your Parenting Plan. Before you discuss this with your spouse or enter the mediation or negotiations, you should have a clear plan of what you really want. As you think about what you want, write in down in a note to yourself.
Rather than couch your goal in terms like sole custody describe in your own words the type of relationship you want between your children, yourself and the other natural parent.
In order to work things out, the agreement has to be fair to both parties. Do not take an extreme position which makes you feel emotionally satisfied, but is not realistic for settlement.
To avoid the extremes, keep in mind what your Best Alternative to a Negotiated Agreement (B.A.T.N.A.) really is. Your only alternative to settlement is a costly custody trial. If a judge hears your entire case and determines your parenting plan, the best interests of the child standard will be used. Unless a parent is legally unfit, meaning a danger to the child, sole custody will not be ordered by the judge.
In many cases, when sole custody is threatened or believed to be the position by the other party, just offering to not seek sole custody, opens the door to negotiations.
In the common case, the husband who thinks he will be cut out of his children's lives, will expend all of his resources fighting, since "the money would just go to her anyway". He sees the children being "held hostage for money", and views that position as proof that the wife is unfit. However, if assured that his love for his children is recognized, and that he will be involved in their lives, he will become very open toward working out both parenting time and a realistic way to finance it.
Ask yourself some questions to clarify what you really want:
- Is working things out in the future important, or do you feel either you or the other natural parent should have dictatorial control?
- Would you be willing to trade places with what you offer to the other natural parent, if not, why do you think your offer would be considered fair or unfair?
- Are you taking a position because you think you need to do that to negotiate a better deal on other issues?
Think in detail, about how you want to spend your free time after you are divorced, not only now, but in 1 year, 5 years or 10 years from now.
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Do not assume that since you are working it out now, there is no need for a detailed formal parenting plan.
This is a common mistake and costly, when lack of planning forces you back into court.
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Although you feel confident that flexibility would be best, relationships change over time and details force you to think about future change.
Even when parties can work out all issues about their children and seem perfectly adjusted, it is far better to create a specific and detailed parenting plan.
A detailed parenting plan:
- Creates a built in schedule and routine for the children;
- Acts as a basis for future negotiations for changes.
You can always verbally agreed to temporary changes from the written parenting plan, but you should have a clear guideline in the plan to fall back on in the event there is disagreement in the future.
Another common error, is to ignore the amount of free time you will have without your children when you do not have custodial obligations. As you move on with your life, your ability to enter into and maintain a future relationship will in part, be based upon the amount of time you have without your children. Do not underestimate the importance that a planned break will have on your future happiness. Realization that you need some down time does not mean you love your children less.
Common Issues to Address
The following list can be used as an outline for items to consider in creating a parenting plan:
Custody
- Children identified
- Ages or birth dates
- Legal Custody
- Physical custody
- Schedule for children
- Weekdays
- Weekends
- Holidays
- Vacations
- Notification of illness
- Access to records
- Grandparents and/or others access
- Travel outside of a geographic area
- Relocation
- Change in custody or other provision
Child Support
- Amount of child support
- Time of payment
- Length of child support
- Emancipation description
- Adjustments or fixed payment
- Description
- If more than one child
- COLA or some other method to adjust child support
- State guidelines
- Renegotiation
- Tax consequences
- Not taxable to recipient
- Not deductible by payor
Education
- if applicable:
- Private primary education costs
- Private secondary education costs
- Post-secondary education costs
Health Insurance
- Policy in Effect
- Obligation of maintaining policy for
- Children
- Spouse
- Duration
- Change of policy
- Coverage of spouse
- Remarriage
- Payments upon remarriage
- Uninsured expenses of children
- Uninsured expenses of spouse
Developmental Needs of Children
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This outline helps identify a child's developmental needs based on their age to facilitate the creation of a parenting plan that addresses both the short and long term issues in support of the best interests of the child.
In cases involving Multiple Aged Children, a parenting plan becomes more complicated and must follow these basic rules:
- Both parents must have similar residential quarters;
- Scheduling may need to be different based upon age;
- Each must have one full day per month with each child alone;
- One parent cannot be the sole cab driver.
Infants and Toddlers
This group includes children from birth through about 3 years of age.
The foundations for basic trust and relationships are formed during this stage.
After a predicable and secure primary relationship is formed children begin to separate, start to assert themselves and form their own personality. Their emotions are quite volatile.
Children in this group require predictability, consistency and routine. They cannot understand the loss caused by the divorce.
For infants, each parent needs to see the child every day or at least every other day. If the infant does not build a bond by age 21 months, they will be a stranger to the other parent and they will blame you later in their life.
For toddlers, they are extremely egocentric and the biggest issues are security and repetition. When a parent leaves their presence, they cannot communicate and feel the missing parent is gone. They feed back what they think you want to hear. They do not remember linearly, that’s why they need repetition.
Research indicates that children typically have a hierarchy of attachment to several adults who have attended to their day-to-day needs, rather than one psychological parent. Some children have a single primary parent, while others have two or more adults that have attended to the child's day-to-day needs.
Since one should avoid too many transitions and disruptions to the primary attachment, it may be difficult, but not impossible, to devise a relatively equal parenting plan for children in this age group.
The Parenting Plan for children in this group should address the following:
- Contact with each parent in a consistent pattern is critical:
- The child's relationship with the primary parent is of major importance and for the first 18 month there must be stability and security in the primary parent;
- Separation from the primary parent with the other parent is safe and related to the extent the other parent has been directly involved in the child's life.
- Attachment, parenting skills and environment are important.
- Frequent shorter periods of interaction with each parent is ideal.
- The child should be in presence of each parent at least every three days
- The child should have contact (telephone, computer “Net Meeting”, etc) on a daily basis.
- Keep reminding the toddler that the other parent is still there;
- Overnights vary with the age and prior contact of the child with the parent:
- If there has been a single primary parent, overnights with the other parent may need to be limited when the child is less than one year of age.
- After about 18 months of age, even children with a single primary parent begin to tolerate and benefit from overnight time with the other parent. There is no basis to oppose overnight visitation for toddlers:
- Same dynamics that take place in day care occur in overnight visitation.
- Stopping overnight visitation is selfish, the toddler needs it for the bonding process.
- Stopping overnight visitation sabotages cooperation
- Toddlers do not need to sleep in your bed during the divorce. This is merely a selfish expression to deprive or punish the other parent.
- Relationship and Temperament Children with an easy temperament with parents who are supportive and cooperative, with similar routines and stable transitions, do best with a relatively equal parenting plan.
- Children with disorganized or anxious attachments may need a primary parent;
- High conflict relationships should have schedules similar to pre-separation patterns of contact. The child needs predictability and neither parent needs to be considered the primary parent until the level of conflict has decreased.
- Vacations The typical 2 weeks in summer is not appropriate for toddlers, it is much better to do several long weekends.
Pre-Schoolers
This group includes children from age 3 through 5 years of age.
These children are learning to better understand language, relationships and feelings. If attachments and care-giving are secure, they will be ready for kindergarten with good self esteem and confidence.
If the parents are conflicted, and the child's attachments are disorganized or anxious, then such children are at risk for serious developmental regression.
Stressed children in this age group may worry about their parents, try to act perfect, have low self-confidence, be clingy, have nightmares or regress in toilet training.
The Parenting Plan for children in this group should address the following:
- Contact A continued focus on predictability, routine and structure;
- The children should not be exposed to parental conflict. If the parents are conflicted, use neutral locations (day care or school) for transitions;
- Longer periods of time with each parent stable routines, and less transitions are most beneficial.
- Overnights with either parent are well tolerated and beneficial;
- If the child is not doing well, the child may still need a primary home when there is conflict and the child is experiencing significant stress;
- Relationship and Temperament Parents need to communicate easily and frequently about the child's eating, sleeping, toileting, health and social and emotional functioning;
- Discipline (as in routines not punishment) should be consistent with each home;
- Each parent may have parenting flaws but each offers the child something the other does not. The plan should maximize each parent's strengths while minimizing the extent to which the child is exposed to the flaws.
- Vacations One week vacations can be tolerated. There should be daily telephone contact with the other parent.
School-Aged Children
This group includes children from age 6 through 12 years of age.
Peer relationships are growing, they are learning to master social rules, express their feeling, gain academic skills, and their creativity continues to grow.
Children in this group may have different relationships with each parent: preferring mom for some things; and dad for others.
They tend to really feel the loss and hurt of the family unit from the divorce and long for the parents to reconcile. They may respond with anger and blame one of the parents for the divorce. They may feel that they are responsible for the divorce.
They believe in fairness and want to please their parents. They feel overwhelmed by their parent's conflict but are frustrated over their inability to fix it.
In high conflict families they may polarize one parent as all good and the other as all bad. They typically have loyalty conflicts, are overwhelmed, disorganized, and have trouble maintaining a strong internalized self-image.
It is common for them to hear a parent blame the other and hear different explanations from each parent. This is confusing and the child does not know which parent to believe.
For older school aged children (9+) They are “Teenagers in Training” whose favorite motto is “Its not fair!” They are beginning to mature and starting to look like and act like the other parent. That personality trait that you hated in your spouse will come out in them. They will pick at you and challenge you to see if you will break up with them.
The Parenting Plan for children in this group should address the following:
- Contact Consistent time-sharing that assures daily access to each parent.
- Contact with the other parent should be free and frequent. Telephone rituals with the other parent are very helpful;
- Transitions should minimize the exposure of the children to conflict between the parents. School is an excellent transition between homes;
- Show A Unified Parenting Front and show up together at school events and talk together in a positive way in front of the children.
- Children must be kept out of conflicts, should not become messengers or spies for either parent.
- Neutral professional help should be used when required.
- Overnight and Time Sharing Optimal plans are with a primary home with 35% - 65% time allocation to plans with joint physical custody with about a 50% time sharing;
- Joint physical custody is the optimal choice, but it requires that the parents: are consistent between homes, exercise a high degree of cooperation, avoid conflict in front of the children, each share in all the parenting tasks, cooperate with the transfer of the child's possessions between homes;
- The time share should focus on each parent's strengths while allowing each time alone to recover from the divorce. Almost any plan of allocation will work except for one week with one or the other;
- Relationship and Temperament Cooperative co-parenting is the optimal method for this age group. If the parties are conflicted, detachment and segregated parenting is the better solution with a primary home and blocks of time to assure continuity and the growth of each parent-child relationship.
- Vacations One or two week vacations are well tolerated, but the school aged child should feel safe to make free and frequent daily telephone contact with the other parent.
Adolescents
This group includes children from age 13 through 17 years of age.
They are developing greater autonomy and their separation-individuation process is similar to that of a two year old showing rebellion, resistance, oppositional and negative behavior in the exploration of their self-identity. They may feel overwhelmed by peer pressure, use poor judgment and feel socially insecure.
This is the worst time for a divorce and when they are in the most need of supervision. Even without the pressure of divorce the children in this age group are at high potential risk.
A high conflict divorce puts these children at risk for academic failure, depression, suicide, delinquency, promiscuity and substance abuse.
Teenagers feel both anger and guilt for what has happened and their greater degree of understanding abstraction makes them more aware of their parents' flaws, and resulting in disillusionment, anxiety and anger. They may react with self-righteousness and avoid contact with a parent whose flaws have been significantly exposed. They may avoid both parents, especially if burdened with loyalty conflicts and adult problems.
Parents must understand that some adolescents want little or nothing to do with a parent. This may be due to:
- Alienation by one parent;
- Frustration with the conflict;
- Moral indignation of divorce behavior;
- Frustration that has built up over a long relationship of pain.
When an older adolescent (aged 15 and older) is adamant about how they want the parenting plan to be, their opinion should be given serious consideration, but is not controlling.
Under no circumstances do children decide the terms of the Parenting Plan.
The Parenting Plan for children in this group should address the following:
- Contact and Overnight A plan that incorporates a range of possibilities is ideal.
- Children in this group want some say in what happens;
- Never give a teen the right to decide who to live with. It is very selfish. Visitation is not an option. Teens does not get a vote, no discussion;
- Teens require continuity and need to stay in the same town and same schools;
- Parent should avoid relocating as teens cannot handle long a distance relationships with either parent;
- The schedule for adolescents may need to be different than that for other aged siblings.
- Conflicts should be managed away from teens ear shot and neither parent should confide in any child adult issues of or between the parents;
- Some will prefer a 50/50 split, but many prefer a primary home to avoid confusion for their friends and weekends or evening with the other parent, often to get a break. Much depends upon their prior relationship with each parent;
- Relationship and Temperament If you stayed married you would not have allowed them to make decisions that you grant them during the distraction of divorce.
- Support services such as counseling, therapy, substance abuse, tutoring or other needs;
- Don’t Fight their Battles – they must assume responsibility for their own actions;
- Both parents must adhere to a uniform set of rules and coordinated punishment;
- Teens will play both ends against the middle:
- Never talk to them about the divorce;
- Never let them bully you;
- Never make them the messenger between you and your former spouse
- In high conflict cases teens need for autonomy and detachment from each parent may be critical. Other adult supportive services should be considered and a neutral party may be needed to monitor and assess ongoing risks.
- Vacations – 2 weeks in summer with one parent is fine
College Aged
The most important rule is “Keep them in College”. When a college aged child learns of the divorce there may be an inclination to act like an adult and help with the problems of the divorce by coming to the rescue of one of their parents. Do not allow them to move home to rescue one of their parents.
The second rule is Talk to Them Together. All questions must be always only be answered only when both parents are present, and be prepared for a range of responses you will never suspect.
N.J Court Rule 5:8-5
5:8-5. Custody and Parenting Time/Visitation Plans, Recital in Judgment or Order
- In any family action in which the parties cannot agree to a custody or parenting time/visitation arrangement, the parties must each submit a Custody and Parenting Time/Visitation Plan to the court no later than seventy-five (75) days after the last responsive pleading, which the court shall consider in awarding custody and fixing a parenting time or visitation schedule.
Contents of Plan. The Custody and Parenting Time/Visitation Plan shall include but shall not be limited to the following factors:
- Address of the parties.
- Employment of the parties.
- Type of custody requested with the reasons for selecting the type of custody.
- Joint Legal Custody with one parent having primary residential care.
- Joint Physical Custody.
- Sole Custody to one parent, parenting time/visitation to the other.
- Other custodial arrangement.
- Specific schedule as to parenting time/visitation including, but not limited to, weeknights, weekends, vacations, legal holidays, religious holidays, school vacations, birthdays and special occasions (family outings, extracurricular activities and religious services).
- Access to medical school records.
- Impact if there is to be a contemplated change of residence by a parent.
- Participation in making decisions regarding the child(ren).
- Any other pertinent information.
- The court shall set out in its order or judgment fully and specifically all terms and conditions relating to the award of custody and proper support for the children.
- Failure to comply with the provisions of the Custody and Parenting Time/Visitation Plan may result in the dismissal of the non-complying party's pleadings or the imposition of other sanctions, or both. Dismissed pleadings shall be subject to reinstatement upon such conditions as the court may order.
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