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American Bar Association - Defending Liberty, Pursuing Justice

WINTER 2011

Vol. 7, No. 2

 

FAMILY LAW

 

Don’t Let Children Take the Fall When Parents Split

By Joan Middleton

We can all easily agree that every child deserves a safe home and a roof over his or her head, good nutrition, access to education, protection by nurturing, loving and healthy parents, access to extended family on both sides, health care, dental care, and vision care. Those are the basics in simple terms.

But life does not always go smoothly for kids, and they don’t always get all of the above. This is very often because of the problems among the adults in their lives.

When things don’t work out between parents and they go their separate ways, kids still deserve all of the essentials listed above. But kids also have the right to child support and to be the subject of a parenting plan that clearly defines their residential placement and the roles of their parents. Unfortunately for kids, these usually are negotiated by their parents and/or lawyers without the child’s participation, unless a child advocate is involved.

As an aside, in Washington state, the residential placement schedule for a child is established by a parenting plan that is approved by the court and entered with the order for child support. The parenting plan establishes where the child lives, the schedule for how much time the child spends with each parent and when, how the handoffs are managed by the parents, and how parenting decisions are made. In the event of disagreement between the parents, the parenting plan determines how child-rearing conflicts are resolved. A parent who fails to follow a parenting plan can be held in contempt of court. Since I practice law in Washington state, in this article I refer generically to the parenting plan, although the reader’s state may use another, similar vehicle.

As a child advocate who has read countless parenting plans over the years, I want to share some child-approved ideas with family law attorneys and others who draft parenting plans.

A parenting plan is not a one-size-fits-all commodity. I’ve learned over the years that parents often are unable to put the best interests of their children ahead of their petty squabbles. Children at different developmental stages require different considerations in their residential placement. Just as important, the children who are the subject of that parenting plan need to have a voice in its creation.

As an example, recently working with 11- and 12-year-old girls, I know at that age girls are more interested in spending time with their peer groups on weekends. Tweens and teens are learning how to establish friendships and develop their own interests. And some may be starting to notice boys. Most of all, they are learning to become independent. This is healthy behavior. A female tween or teen is probably more interested in going to the Saturday night sleepover with her friends than she is in spending the weekend with her “alternate weekend residential placement.”

Perhaps when you negotiate your next parenting plan, you can include language to the effect that the plan should be revisited every two years so that appropriate developmental milestones are recognized as the children age. Most kids I work with love this idea. They don’t want to be locked into alternate weekends and holiday splits forever. They may not even want to spend Mother’s Day with mom and she needs to be okay with this if there is a year when a child has a scheduling conflict.

If your clients have resources, consider having them retain a child advocate or lawyer to represent the children. If your clients don’t have resources, review the feasibility of having a CASA (Court Appointed Special Advocate) or a GAL (Guardian ad Litem) appointed to work for the best interests of the child.

Here’s an interesting idea. If your client’s children are young, ask them to come to your office with their parent. Keep the parent occupied elsewhere (reviewing documents?), but have the kids in your conference room. Give them some crayons and paper on which large circles are already drawn. Ask them to color in pie sections for how much time they want to spend with each parent, their friends, their video games, their pets, their favorite grandmother, their neighborhood, their basketball coach, or school friends. Tell them that the bigger the pie slices, the more important that piece of pie is to them.

I guarantee that the circles will not be filled in with equal-sized pie slices for each parent and each activity. I once worked with a little boy who could not play on the junior softball team every Saturday morning because his dad had alternate weekends. This child was heartbroken, too. His parents didn’t get it.

After you review the drawings, give that feedback to your client and ask him/her how they want to handle that with the other parent. Maybe suggest a mediator or a collaborative approach at this point, if you haven’t already.

Also consider the logistics of weekend handoffs. Do you want to sit in Friday rush-hour traffic taking your children to your ex’s house? I’ve had cases where the child was strapped into a car seat for two hours while riding home with his weekend parent. To make matters worse, he had to be driven back at 7 a.m. on Monday to be back in school on time. Don’t do that to your clients’ kids or your own kids if you’re working out your own parenting plan.

One more observation: It really sounds great to have a 50/50 residential placement compromise, doesn’t it? Except that means neither parent may have to pay child support. Little Biff’s allowance and discretionary funds for social stuff will be impacted. Every kid deserves the maximum monetary award from each parent and a bedroom with most of his stuff in it, not an awkward split between two homes. Maybe your clients could trade years of residential placement instead of weekends or weeknights?

Little boys may want to go to live with dad when they are 12 or 13. Young girls may want to go live with mom to get more of “the girl thing” as one of my 12-year-old clients once told me. She didn’t like hearing her dad talk to her about menstruation and feminine hygiene products, even though he was an excellent father and willing to have those conversations with her and present the information in an appropriate way. She wanted her mom to do that. She wanted to go bra shopping with her mom, too.

Last but not least, while you are negotiating, make sure there is a court order to establish a 529 account into which each parent must make regular deposits for future tuition costs, even if each parent has to take an evening job flipping burgers to do so. Every child deserves a college education or vocational training to acquire a job skill valued in the marketplace. Translate: kid gets a good job someday because the parents could work cooperatively and collaboratively to plan for their child’s future employment.

Joan Middleton is a Washington state attorney and a guardian ad litem working with the elderly, the disabled, and children. She can be reached at 425-444-4030 or by email at kindlawyer@hotmail.com.

Originally published in the October 2010 issue of the King County Bar Association Bar Bulletin. Reprinted with permission of the King County Bar Association.

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