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When equal parenting plans might not be the best option

| Sep 1, 2020 | Divorce, Domestic Violence, Family Law, Legal Decision Making And Parenting Time |

As you create a post-separation parenting plan, you and your former partner will have a lot to think about – including the best child access schedule. Should it be divided evenly? Are there important reasons why it should not? Will the situation change enough in the months to come that you should prepare for revisions sooner than later? Most importantly, which schedule is best for the children, regardless of the personal wants and needs of either parent? Remember, too, your judge will have the final say, either because she must approve your settlement or conduct a trial.

Here are four factors to consider:

  1. Is one parent abusive?

Even the best people separate for reasons having nothing to do with character or parental fitness. But maybe a parent is abusive, too, in a way that would concern the judge. Physical assaults are easier to spot and talk about, especially when injury results, but most domestic violence survivors describe psychological abuse as worse. The difficulty is recognizing when someone who is merely unpleasant or argumentative has crossed the line into threats, mocking belligerence, or active undermining of the other party’s parental rights and responsibilities. It takes time, effort, and good judgment to prepare a case (e.g. witnesses and exhibits) that shows you understand the difference … and that the children are at risk.

Some judges also tend to be less patient with legal claims based on psychological abuse, often because they (like the public in general) mistakenly view it as little more than two people who “can’t get along.” So you can still present this point of view. Disrespectful and profane behavior matters, particularly when it comes to who should make educational, medical, or counseling decisions for a child. But it will be harder to persuade a court to see things your way unless your evidence is strong and well-organized. (You will also want to be able to say you haven’t behaved just as badly!)

  1. Will co-parents live close to one another?

Regardless of behavior, “50/50” child access is usually impossible when the two parties live in different States or hundreds of miles apart. Parents faced with this reality must negotiate (or wait for the judge to order) a “long distance” plan that tries to compensate for these circumstances. Furthermore, while any individual (alone) always has the constitutional right to live where they please, it does not necessarily follow that they can simply take a child along for the ride. In many situations, Arizona parents must seek court approval or the other party’s consent to remove a child more than 100 miles away or across State lines. These rules are much more complex than people realize, with several exceptions, so you will want to review Arizona’s child relocation law and consult with a family law attorney who has experience with interstate child custody issues.

  1. Can parents put aside differences?

Co-parenting requires communication, but if you and your former partner struggle with that, it may be smart to construct an access plan that minimizes contact (e.g. fewer child exchanges, curbside delivery, substitute drivers, etc.). This way, you’re not fighting in front of your children.

  1. How old are the children?

Arizona law requires the family court to consider (but not necessarily defer to) the wishes of a child of suitable age and maturity, but that does not give either parent free rein to privately interrogate, bribe, bully, or pressure the child to see things his or her way. (Parents who try those tactics eventually pay a heavy price in court.) Even if you mean well, you’re generally asking for trouble if you question children about their preferences.

Many parents also make the mistake of believing these discussions with their child are okay because the child is “precocious” or “wise for his [or her] years.” Those arguments will not convince anyone and, depending on the child’s youth, can even look silly. Be smart, and save adult decisions for the adults. Try to think of an access schedule that best serves your child’s changing needs: classes, lessons, theatre, music, sports, etc. Make that the priority. Always.

If you are uncertain what to do, consult with an attorney who understands these different issues!