The Top 10 Drafting Mistakes Lawyers Make Preparing Parenting Plans

On January 16, 2020, the Custody Committee of the Family Law Section hosted a Brown Bag Luncheon Series entitled “The Top 10 Drafting Mistakes Lawyers Make Preparing Parenting Plans.”  Dr. Robyn Landow[1] provided much insight regarding drafting and preparing parenting plans. We’d like to share some of Dr. Landow’s instruction and expertise on drafting plans with you if you were unable to attend the luncheon!  The following are ten assists in preparing your plans:

1. Consider both the past and current relationship of the co-parents.  Their relationship should set the tone for what is needed in the plan and should be an indicator of how future planning should be handled.  Generally, the higher the level of conflict between parents, the higher the need for increased specificity in the parenting plan. However, in all plans there should be a general commitment to behave with good faith toward the other parent.
2. If there is a Parenting Coordinator, his or her role in the plan.  It is good to insert language that explains that the Parenting Coordinator is to resolve disputes regarding the implementation of the plan and to help the parties settle into the plan, as well as to create guidelines for communication.  The role of the Parenting Coordinator can be further defined by including other parameters, such as whether the Parenting Coordinator and make decisions or his or her own suggestions or whether the Parenting Coordinator is limited to choosing between the parent’s proposals.
3. Include language that resolves how to terminate the relationship of both parties with the Parenting Coordinator.  Should the role of the Parenting Coordinator need to end, the parties should know how this will take place.  What happens if both parties don’t agree to the termination? Can one parent unilaterally fire the Parenting Coordinator, or must they both agree? What Parenting Coordinator is in place until the next one is formally agreed upon? How will the parties find a new one, and must both parties agree on the replacement? Who will bear the associated cost?   
4. Decision making.  When considering decision making, consider all areas. Depending on the age of the children, some areas of dispute should be contemplated in advance.  If they are truly areas of dispute, address them in the plan. Also, it may be possible to gain advanced consent. For example, parties may consent that the child will obtain a learner’s permit or drivers license at a certain age; or, parties may consent that a child can attend the Senior Class Trip overseas.  There are many life events that can be made easier if addressed earlier.
5. Communication.  Parties may want to agree that neither of them will talk about changes to the plan with the child until the co-parents have agreed. A must is phrasing that the parents should not communicate orally through the child, and written notes passed through the child should be avoided.
6. Preparing the Calendar or Weekly Schedule.  It may be helpful to prepare a calendar that is consistent with the parenting plan as a visual illustration of how the plan is to be implemented in the coming year. Also include in the schedules any limits that are imposed.  For example, there is a window of fifteen minutes for pick up and drop off; or, what happens to transfers when the child is sick or out of school? 
7. Anticipating Extra-Curricular Activities.  As children get older, there may be situations where activities overlap parenting days.  Perhaps there are practices and games on both weekdays and weekends, and both parents need to participate.  Clearly define the duties of both parents in order to make sure that the child is not being deprived of the benefit or a program or being put in a difficult social situation.  It may be helpful to state when the child is allowed to miss practices or games while in the care of the other parent.
8. Holidays, Vacations, and Special Days.  These should be clearly defined, with a clear beginning and ending date and time, along with any special provisions regarding transfers during long holidays. Include special considerations for dates and periods of time that are important to one family in order to avoid conflict.  For example, family observances and rituals (such as gravesite visits for a deceased family member); or, family reunions that occur at the same time every year or other year.
9. Traveling.  Address the specifics of any itinerary for travel, as far as what should be included in the itinerary and how far in advance it should be presented to the other parent.  Also decide who obtains and keeps the minor child’s passport, if necessary. There are other issues that may be related to travel for the minor child to and from visitation, so be sure to address travel expenses and at what age the child can fly alone, if that is a concern.
10. Overarching and Miscellaneous Issues.  If there are issues that do not fit into any category above, address them separately depending on the needs of your client. A major example includes clothing, possessions, and toys that travel with the minor from one home to the other. It is wise to brainstorm with both your client, the Parenting Coordinator, and perhaps even opposing counsel to determine what these issues may be and address them in your plan.

A recording of the luncheon will be available soon, but we encourage all members of the Family Law Section to join us live at future seminars.