Drafting A Parenting Agreement

How to Create A Workable Parenting Plan

A parenting agreement is a written tool that establishes how you and a co-parent intend to manage your parental rights and responsibilities. This is extremely useful in cases of divorce, when emotions can be volatile and unpredictable.

Regardless of the anger or emotional pain you and your ex might feel, establishing a fair parenting plan will help minimize the effects of divorce on your children and potentially even alleviate some of the stress of becoming a two-household family unit.

Every court requires a parenting plan in some form or another if a divorcing couple has children.  Either the court will create what it believes to be a reasonable parenting plan after a trial or the former couple can hammer out the details on their own and reach an agreed parenting plan.  The best parenting plans cover as many contingencies as possible in order to avoid conflict in the future.

Physical Custody 

To draft a parenting plan, you and your ex should consider all of the various issues and try to come to a mutally acceptable agreement. The first big question is usually:  who will have primary physical custody of the children? If the two of you are sharing physical custody (joint physical custody), then you'll need to establish when the children will live at each household and cover many other details that such an arrangement requires.

Keep in mind that moving back and forth may be stressful on the child and unless you and your ex live in the same school district, weekdays during the school year could quickly become disastrous. To avoid problems, you should be very clear about how such an arrangement would work. Consider school attendance areas, transportation to and from school as well as after-school activities, how to handle the inevitable back and forth of clothing and other items, who is responsible for what incidental expenses and the like. 

Legal Custody

In addition to physical custody, couples must also decide how legal custody will be distributed. While you are both still the legal parents of the child, there are some issues that must be addressed when the parents no longer live under the same roof. This means that you and your spouse will have to come to an agreement regarding the decision-making process as it relates to your child's life. Make sure to consider issues like medical care, religion and education. Where will your child attend school, for example, or what religion will he or she practice? These questions fall under the heading of legal custody and should be addressed in your parenting agreement.  If you cannot reach an agreement on some of these issues, how will you seek to resolve the problem.  (Many parenting plans require parents to go to mediation in such circumstances in order to avoid returning to court.)

It is not uncommon to share legal custody even if you won't be sharing physical custody equally, allowing both of you to take an active role in decisions about how your child will be raised. That said, it is still better to address some of these concerns now rather than wait for the issue to arise and find yourself in a bitter dispute with your ex.

Visitation

If you and your ex will not be sharing physical custody, then you'll need to set out agreed visitation periods so that both of you (as well as your children) know what to expect. This should be as detailed as possible - and, in the best case scenario, will include a mutual agreement that there will be flexibility between you and your spouse whenever it is needed. If you set start times and end times as well as transportation specifics, then you at least will have a default position if there is ever a disagreement.  The visitation schedule can even be arranged so that you and your spouse don't actually have to see each other during the transfer of custody - for example, one parent drops the child off at school on Friday morning and the other parent is responsible for picking them up Friday afternoon. 

You'll also need to address things like holiday visits and birthdays. If you celebrate Christmas for example, who will the child spend Christmas Eve and/or Christmas Day with? Many parents choose to rotate year by year so that both parents get the opportunity to share Christmas morning with their kids. Likewise, many parents agree to split other holidays or trade off - one parent takes Easter for example while the other parent gets July 4th. Father's Day is usually spent with Dad as well as Dad's birthday and the same would be true for Mom. 

Will you take turns with the child on his/her birthday or is the divorce amicable enough that you can all spend it together? What about vacations or spring break? Will you each have the opportunity to take your child on a vacation each year? If you child attends a summer camp, how will you compensate for the disruption in visitation?  Handling these questions in the parenting plan can make the schedule work more smoothly as the years go by.

Communication

You may also want to specify how communication will be handled between you and your ex. With email so readily available, it might be a good idea to agree to email any changes in schedules so that there's a written record of the communication. You can also specify different means of access (i.e., home phone, cell phone, email, text message, IM) for the child to contact the non-custodial parent to help reinforce the parent-child connection in between visits.  (And to allow the custodial parent brief contact with the child during the other parent's visitation periods.)

Child Support

How will you and your ex handle support of the children? Typically, the non-custodial parent pays a set amount of child support but if you are sharing custody, support might be a different matter and the more specific you can get in your agreement, the better off everyone will be. One parent for example might agree to pay for medical insurance while the other parent might assume responsiblity for after-school activity expenses. There's no limit to the way you can construct your agreement - just be sure your plan is workable and enforceable.

While these issues can be addressed in a court hearing during the divorce, you and your ex may be able to come up with something that works better for your family and that's what's important.  If you can set aside your hurt feelings and anger for the sake of your child, you are almost certainly able to draft an agreement that will be better suited for your family than anything a judge could come up with.

Same Sex Couples and Parenting Agreements

This is even more true for same sex couples as most states don't recognize any rights for the non-legal parent. This can create a serious problem if the couple decides to call it quits or if the legal parent should die. In this instance, family members of the legal parent could assume custody of the child while the non-legal parent would have few if any parental rights at all.

In fact, it is not uncommon for non-legal parents of same-sex couples to suddenly find themselves removed from their family unit and without any legal recourse. Obviously, adoption by the non-legal parent would be the best way to solve this problem but because many states don't allow single parent adoption and/or same sex parent adoption, a parenting agreement may be the only way to go.

This doesn't guarantee that the non-legal parent would be granted physical custody of the child but it does provide the court with a written document showing the intentions of the legal parent to include the non-legal parent in the child's life. Many courts do consider the importance of a child's relationship with what is often referred to as an "emotional parent" - that is, a parent who is not the legal guardian but who has assumed an important role in the child's life. A parenting agreement could reinforce your status as an emotional parent and could help your case if you are forced to sue for custody and/or visitation with your child.

You can learn more by reading this book about drating parenting agreements .