Creating Effective Parenting Plans for Children with Disabilities

Based on the authors’ experience, the three most common scenarios for children of separation and divorce are (1) parents are physically separate but maintain a positive co-parenting relationship, (2) parents are physically separate but one parent is dominant in the parental relationship, and (3) the parents engage in constant conflict and the children are caught in the middle of the parents’ tug-of-war. See Diagram 1. Long-term research by Wallerstein, Lewis, and Blakeslee in their pivotal work The Unexpected Legacy of Divorce demonstrates the long-term consequences for some adult children of divorce when their parents were unable to cooperatively co-parent and engaged in conflict during their children’s youth and adolescence.

Parental conflict can increase significantly after divorce, particularly with parents who have children with disabilities. Conflict can occur over diagnosis, treatment planning and participation, coordination between homes, transitions, school attendance, and medication management. Additional considerations must be made when a child has a mood disorder, such as depression and anxiety, as child safety and supervision may need to be increased.

Separated and divorced parents do best when they can cooperate in parenting or, in the alternative, when they have a structured and specific parenting plan that sets forth clear rights and responsibilities for each parent to effectively manage their children’s needs during their custodial timeshare.

II. Key Considerations for Developing Parenting Plans for Children with Disabilities

Families with a child with a disability often require detailed parenting plans that clearly identify the parents’ respective timeshares and respective responsibilities to meet their child’s medical, mental health, or other appointments, as well as other potentially time-consuming therapeutic interventions. As others have noted, “[i]n order to properly deal with the reality of today’s divorce climate, all lawyers and judges handling family law cases should educate themselves on disabilities and the impact they have on family law cases” so as to ensure that children’s needs are addressed.

Three key considerations in drafting parenting plans for families with a child with a disability are (1) consistent schedules and predictable routines, (2) increased supervision and parental involvement, and (3) flexibility. Each of these factors must be taken into consideration when assessing the needs of the child and the family in developing a parenting plan schedule.

Some children with neurodevelopmental disorders such as ADHD and Autism Spectrum Disorder face challenges in managing change and transitioning into new environments without experiencing a level of emotional dysregulation or even crisis. This can lead to added stress and anxiety for the child, the child’s caregivers, the child’s siblings, and other members of the family.

In addition, some children with disabilities require a high level of supervision and care. Specific arrangements will need to be made for their parents to share responsibility for medical, mental health, and other therapeutic appointments, as well as ensure that their child’s special educational needs are met. Ideally, parents can cooperate in making and attending appointments, but in cases where parents are not able to agree on medical, mental health, and developmental providers and schedules, it may be best to assign decision-making authority to one parent or assign specific areas of decision-making to each parent.

Paradoxically, while parenting plans for families of a child with a disability should be highly structured, they also need to build in flexibility, to account for the individual needs of the child, parents, and other caretakers. If one parent is ill during their timeshare, the other parent may need to adjust their schedule to accommodate the child; for example, if an autistic child has in-home applied behavior analysis (ABA) therapy with a provider who transitions between the parents’ homes based on the custodial schedule, the other parent may need to accommodate the child remaining in the home for an extended period of time. One parent’s absence due to an unexpected and temporary schedule change is not always easy to accommodate, as it may require providers to adjust their travel to/from the parent’s home, the other parent may need to adjust their work schedule, and other care providers may be needed.

So now that we have addressed the why, let’s discuss the how.

III. How to Draft a Parenting Plan for Families with Children with Disabilities

A well-drafted parenting plan should put the parents on auto-pilot. Specifically, with a highly structured parenting plan that provides a clear schedule and assigns parenting responsibilities to each parent, there should be little or no reason for the parents to frequently appear in court, as their parenting plan should provide a clear plan for daily living and decision-making.

Some parents may object to a highly structured parenting plan that appears to restrict their custodial timeshares, assigns each parent specific responsibilities, and limits their daily contact with their children. However, parents need to understand that a written parenting plan is the “backup plan.” That is, if parents are able to cooperatively work together for the benefit of their children, they may never need to refer to the parenting plan. In the event that the parents disagree on the custodial schedule or a decision regarding a child’s medical care, providers, or therapeutic interventions, however, the parenting plan is a critical resource. An effective parenting plan provides clear direction on each parent’s custodial times, holiday schedules, decision-making assignments, and financial responsibilities without the need for extensive back-and-forth communication between the parents to work out the details or, in the worst-case scenario, frequent trips to the courthouse.

A well-drafted parenting plan is in effect an Instruction Manual for the parents. It’s a “How to” brochure, specifying how and when to exchange the children between the parents’ homes; how transportation will be provided and who will provide it between homes; how and when vacations will be taken; and how decisions will be made regarding medical appointments, insurance, and the like. If the parents are able to reach agreement on any or all of these provisions, they may not need to consistently refer to the parenting plan and can, if they mutually agree, make any changes to the schedule or their respective rights and responsibilities. However, when they have disagreements, the parenting plan provides the default schedule and assignment of rights and responsibilities.

Therefore, a well-drafted parenting plan needs to anticipate potential issues that will arise and preempt potential conflicts. The most common problems with parenting plans center on the lack of specificity, particularly if the parents prepare a parenting plan without the assistance of an experienced professional. However, even the most experienced drafters, including family court judges, commonly omit details that will reduce potential conflicts in the future.

In this section, we discuss key components of effective parenting plans for children with disabilities. Part A discusses options for legal decision-making and includes sample language. Part B addresses physical custody or parenting time schedules. Part C reviews additional considerations that may need to be addressed.

A. Legal Custody: Decision-Making Authority

Legal custody is decision-making authority over major child-related issues, including medical, religious, and educational decisions. Parents who have joint legal custody share decision-making authority for their children. Sole legal custody assigns all decision-making authority regarding major life decisions for the child to one parent.

Increasingly, courts are awarding joint legal custody to parents when both parents are physically available and mentally and emotionally stable to share in decision-making authority. Exceptions may include when a parent has been consistently absent from a child’s life for an extended period of time, a parent has mental health or substance abuse issues that impair their ability to act in the best interests of the child, or one or both parents have engaged in domestic violence against the other parent or abused or neglected the child. When the parents are not able to reasonably share decision-making authority, the court may assign different decision-making areas to each parent or award sole legal custody to one parent, so one parent may make all major life decisions for the child including medical and psychological care as well as educational decisions.

1. Drafting Joint Legal Custody Parenting Plans

Typical joint legal custody language for parents who share in all aspects of decision-making may include the following:

The parties shall share joint legal custody of the children and shall abide by the following joint legal custody provisions:

A. The parties shall each have access to medical and school records pertaining to the child(ren) and shall list the other parent’s name as a joint custodian on all school, healthcare, and extracurricular activity forms for the child(ren). Each party shall be permitted to independently consult with any and all professionals involved with the child(ren).

B. The parties shall jointly select all health care providers for the child(ren). In the event the parties cannot agree to the selection of a provider, the child(ren) will continue to be seen by the current provider until an agreement is reached by the parents or further order of the court.

C. The parties shall both participate in decisions regarding school selection for the child(ren). If the parties cannot agree, the child(ren) shall remain in the school they are currently enrolled in and will transfer/matriculate into the school corresponding with their school of enrollment/origin.

D. Each party may independently select a safe and appropriate care provider for the child(ren) during their own custodial time or the parents shall jointly agree to a childcare provider for the child(ren) and shall share in the childcare costs based on their respective custodial timeshares and proportionate to their respective incomes.

E. Each party is authorized to obtain emergency health care for the child(ren) without the consent of the other party. Each party is to notify the other party in writing as soon as reasonably practicable of any illness requiring medical attention, or any emergency involving the child(ren).

F. Each party is responsible for providing the other parent, in writing, with information they receive concerning the well-being of the child(ren); notices of activities involving the child(ren); samples of school work; order forms for school pictures; health care provider information and appointments; and the names, addresses, and telephone numbers of all schools, health care providers, regular day care providers and counselors. Each party is to advise the other party, in writing, of school, athletic, and social events they unilaterally enroll the child(ren) in.

G. The parents shall communicate directly with one another regarding the needs and well-being of the child(ren) and shall not communicate with one another through the child(ren).

H. Neither parent shall speak negatively about the other parent or make or expose the child(ren) to any comment that would demean the other parent in the eyes of the child(ren) or physically or verbally abuse the other parent in the presence of the child(ren). Each shall instruct their respective family and friends that no negative or disparaging remarks are to be made regarding the other parent in front of the child(ren) or on social media accessible by the child(ren).

2. Drafting Sole Legal Custody Parenting Agreements

Sole legal custody provisions are generally much more basic:

Parent A shall be the sole legal custodian of the minor child(ren) and shall have the right to make all medical, educational, and religious decisions regarding the children.

3. Considerations for Children with Disabilities

Care must be taken in drafting parenting plans for parents of a child with a disability. Children have more healthy psychological outcomes when they have consistent medical providers, therapeutic services, and regular school attendance.

However, it is not uncommon for divorced parents to disagree on a child’s diagnosis and treatment. In our experience, the parents’ battles can result in the parents presenting different perspectives to the court on the child’s needs and their ability to provide for them, which can be overwhelming to the trier of fact in determining what is in the child’s best interests. As a result, after an evidentiary hearing, the court may assign each parent decision-making authority in designated areas.

For example, if one parent consistently interferes with the children’s medical treatment following an ADHD diagnosis, the court may make the following order:

Due to the high conflict nature of the parental relationship and Parent A’s consistent refusal to acknowledge the [name of child’s] ADHD diagnosis and administer prescribed medications, the Court awards Parent B all decision-making authority regarding selection of the medical provider for the purpose of diagnosing and treatment of [name of child’s] ADHD diagnosis, as determined by [name provider], including exclusive ability to schedule and attend the child’s appointments with providers. Parent B shall also have exclusive authority to obtain the child’s pharmaceutical prescriptions and shall provide Parent A prescription medications necessary for her assigned residential timeshare, which Parent A shall administer to the child as prescribed.

In the event the court grants one party decision-making authority over a designated area, it is important that the court first hold an evidentiary hearing, to ensure due process for each parent, and then craft the order narrowly to limit intrusion on each parent’s right to parent their child.

B. Physical Custody Provisions: Where the Child Resides

Physical custody is the time that a child resides with each parent. Joint physical custody allows a child to have frequent associations and a continuing relationship with both parents. Increasingly, states are supporting awards of joint physical custody, which allows both parents to have regular contact with their children. While some states have enacted presumptions favoring 50-50 parenting time, joint physical custody can take other forms as well, such as a 60/40 or more timeshare.

However, the court must determine what physical custody arrangement is in the best interest of the child. In some circumstances, the court may award primary physical custody to one parent; for example, if one parent is unwilling or unable to care for a child on a regular basis; has engaged in domestic violence against the child, a parent of the child, or another person living with the child; or is otherwise unfit to have physical custody of the child.

When drafting a parenting plan for children with disabilities, care needs to be taken to address the child’s specific needs and limitations. This may include physical modifications of each parent’s home (for accessibility), as well as consideration of the child’s psychological needs, emotional maturity, medication management, school access, provider access, and parent/child temperament.

For example, if a child has physical limitations, each parent’s home should be accessible, such as having a wheelchair ramp and door openings that allow a wheelchair to access community rooms throughout the home. A child who is autistic may have difficulty with frequent transitions between parental homes and may need a primary residence where they sleep at night. The parents may agree that their child with Down syndrome will do best if they reside primarily in one home. One parent may be better equipped emotionally and temperamentally to care for a child with bipolar disorder, oppositional defiance disorder, or anxiety or depression.

An additional consideration for families with a child with a disability is the parent’s ability to provide stability in caring for the child. If one parent has been the primary caretaker of the child and is more familiar with the child’s needs, that parent can be designated as primary caregiver. Additionally, if one parent lives in close proximity to the child’s school and it is not feasible for the other parent to travel to the school every weekday, the parents may agree that the child will live with one parent during the week and the other parent on weekends.

Drafting Tip: In setting forth the timeshare for the parents, special care must be taken to delineate the beginning and end time for each parent’s timeshare so no one is left wondering when and where the children will be picked up on the date of the exchange. Sample language is set forth under each parenting schedule below.

1. Primary Physical Custody Schedules

A parenting plan may grant one parent primary physical custody, in which the child lives primarily in one parent’s home, and the other parent—referred to here as the non-residential parent—parenting time, also known as custodial time or visitation.

Typical primary physical custody schedules can include:

1. Alternating Weekends: Friday-Sunday: The traditional primary physical custody schedule is the alternating weekend schedule. This allows the child to remain in one primary residence but spend two overnights with the non-residential parent (the parent with whom the child does not primarily reside) every other week. This schedule can resemble the chart below or vary as agreed by the parents:

“The child shall reside primarily with Parent A. Parent B’s timeshare shall be designated as the 1st, 3rd, and 5th (if applicable) weekends of each month, beginning at 5:00 PM on Friday and ending at 6:00 PM on Sunday. The first weekend of each month shall be defined as the first weekend of the month that includes both a Saturday and a Sunday.”

2. Alternating Weekends: Saturday-Sunday: This schedule is similar to the one above but allows the child to spend one overnight with the non-residential parent every other week. This schedule can resemble this chart or vary as agreed by the parents:

“The child shall reside primarily with Parent A. Parent B’s timeshare shall be designated as the 1st, 3rd, and 5th (if applicable) weekends of each month, beginning at 5:00 PM on Friday and ending 6:00 PM on Sunday. The first weekend of each month shall be defined as the first weekend of the month that includes both a Saturday and a Sunday.”

3. Afternoons/After School Time: If a child with a disability is unable to spend an overnight with the non-residential parent because the child is very young or unable to effectively transition between homes, the parents can agree that the non-residential parent will pick up the child for school in the morning and transport the child to school, or pick up the child after school and spend quality time in the afternoon with the child before returning the child to the residential parent’s home, where the child will sleep for the night. If the parents get along in all respects, they can have dinner together or the non-residential parent can visit the residential parent’s home to read the child a bedtime story. The options are endless. The schedule can look like the chart below, or it may include one or two afternoons per week, or vary as agreed by the parents:

“The child shall reside primarily with Parent A. Parent B’s timeshare shall be designated as Sunday, Monday, Tuesday, Thursday, and Friday afternoons upon the release of school until 6:00 PM, or if the child is not in school from 3:00 PM until 6:00 PM, when the non-residential parent shall return the child to the residential parent’s home.”

2. Joint Physical Custody Schedules

If a child is able to effectively transition between the parents’ homes, the parents can create any shared joint physical parenting schedule that works for them. However, states vary in what types of timeshares constitute primary or joint physical custody.

Based on your state’s definition of what types of timeshares constitute joint physical custody, the schedules typically include:

1. 2/2/5 Timeshare: In a 2/2/5 timeshare, the child consistently spends two days per week with Parent A and two days per week with Parent B; for example, the child may spend Monday and Tuesday of each week with Parent A, and Wednesday and Thursday of each week with Parent B. The parents then rotate the weekends, with the child spending Friday, Saturday, and Sunday with each parent, on an alternate basis. During Week 1, Parent A will have the child on Monday and Tuesday; and Parent B will have the child Wednesday and Thursday, as well as Friday, Saturday, and Sunday, for a total of five days. However, during Week 2, Parent A will have the child Monday and Tuesday and the child will go to Parent B on Wednesday and Thursday, then return to Parent A on Friday, Saturday, and Sunday. Since Parent A will have the child for the weekend (Friday to Sunday) and then have the child during the regular Monday and Tuesday timeshare, that gives Parent A the child for five consecutive days heading into Week 3. The schedule rotates this way every other week and looks like this:

“The parents shall share joint physical custody of the child(ren) on a 2/2/5 schedule. Parent A’s timeshare shall begin on Monday at the first morning school bell, or 9:00 AM if the child is not in school, and continue until the first morning school bell on Wednesday, or 9:00 AM if school is not in session. Parent B’s timeshare shall begin at the first morning bell on Wednesday, or 9:00 AM if the child is not in school, and continue until Friday morning at the first morning bell, or 9:00 AM if school is not in session. The parents shall share the weekends on an alternating schedule throughout the year, beginning at the first morning school bell on Friday, or 9:00 AM if the child is not in school, and continuing until the first morning school bell on Monday, or 9:00 AM if school is not in session. The weekend rotation shall begin with Parent A having the children the first weekend in January with both a Saturday and Sunday and the parents rotating the weekends throughout the year thereafter.”

2. 3.5/3.5 Timeshare: This is a truly equal physical custody timeshare, with the parents sharing the week equally. The parents have consistent days and times for their respective custodial timeshare.

“The parents shall share joint physical custody of the child(ren). Parent A’s timeshare shall begin on Wednesday, upon the first morning bell, or 9:00 AM if the child is not in school, and continue until Saturday at 5:00 PM. Parent B’s timeshare shall begin at 5:00 PM on Saturday and continue until Wednesday upon the first morning bell, or 9:00 AM if the child is not in school.”

3. 3/4 Timeshare: In a 3/4 timeshare, the child spends three days per week with Parent A, for example, Sunday, Monday, and Tuesday, of each week, and four days per week with Parent B, for example, Wednesday, Thursday, Friday and Saturday. The main difference between the 3/4 timeshare and the 3.5/3.5 timeshare is the Saturday night versus Sunday morning exchange time. The schedule looks like this:

“The parents shall share joint physical custody of the child(ren). Parent A’s timeshare shall begin on Wednesday, upon the first morning bell, or 9:00 AM if the child is not in school, and continue until Sunday morning at 9:00 AM. Parent B’s timeshare shall begin at 9:00 AM on Sunday and continue until Wednesday upon the first morning bell, or 9:00 AM if the child is not in school.”

4. Week On/Week Off Timeshare: In a week on/week off timeshare, the child transitions between each parent’s home every week. The schedule looks like this:

“The parents shall share joint physical custody of the child(ren) on a week on/week off basis. Parent A’s timeshare shall begin on Monday at the first morning school bell, or 9:00 AM if the child is not in school, and continue until the following Monday at the first morning school bell, or 9:00 AM if the child is not in school. Parent B’s timeshare will begin on Monday morning at the first morning school bell, or 9:00 AM if the child is not in school, and continue until the following Monday at the first morning school bell, or 9:00 AM if the child is not in school. The rotation shall begin with Parent A having the children the first Monday in January and the parents rotating the weeks throughout the year thereafter.”

Any variation of these physical custody timeshare schedules can be adopted by the parents based on their child’s disability and each parent’s availability and the best interest of the child. Since ordinarily parents are in the best position to determine what is in their child’s best interest, assuming that they can work cooperatively together, they should work to set a schedule that will be included in the parenting plan.

Drafting Joint or Primary Physical Custody Language: When drafting a parenting plan for joint or physical custody, the parenting plan custodial timeshare is clearly set forth. In addition, the parenting plan should include language about communication and compliance. For example (specific details may vary depending on the preferences of the parties):

A. Each party may attend the child(ren)’s school, athletic, and other recreational activities.

B. Each party is to provide the other party with written notice of the child(ren)’s telephone numbers and address within ten (10) days of this Order being entered and within 10 days of changing the child(ren)’s telephone number or address.

C. Each party is to provide the other party with a written travel itinerary for the child(ren) if the child(ren) will be traveling more than 60 miles from the child(ren)’s home whenever the child(ren) will be away from the parties’ home for a period of two (2) nights or more.

D. Each party shall be entitled to telephone, video, or text communication with the child(ren) during the other parent’s timeshare, with the non-residential parent to initiate the text/phone call and communicate with the child(ren) for no more than 15 minutes, as follows:

• Once per day for 15 minutes from 5:00–5:15 PM.
• Once per week on [Preferred Day] from 5:00–5:15 PM.

E. Each party shall allow the child(ren) to transport their clothing and personal belongings freely to the other parent’s home during custodial exchanges.

F. The parents shall communicate directly with one another regarding the needs and well-being of the child(ren) and shall not communicate with one another through the child(ren).

G. Each parent shall exert every reasonable effort to assure the child(ren) visits with the other parent for the other parent’s scheduled parenting time; and the parents shall not directly or indirectly interfere with the other parent’s parenting time by suggesting, encouraging, or authorizing the child(ren) to choose.

H. Interference with the other parent’s residential timeshare, a willful violation of the Court’s final Custody Order, or repeated reports to child protective services that are intended to interfere with the other parents’ parenting time and are unsubstantiated may result in a change of custody to the non-offending parent.

Caveat: In many states, the type of timeshare agreement, whether primary physical custody or joint physical custody, and/or the number of overnights the child spends with each parent may impact their child support calculations.

C. Additional Considerations

When drafting parenting plans for families of a child with a disability, the drafter must consider all factors that may impact the effective implementation of the parenting plan now and in the future. Long-term planning is especially important in the case of children who may require assistance from one or both parents throughout their lives.

1. Level of Parenting Conflict

While the feasibility of a physical custody timeshare schedule should be based on the ability of the child with a disability to transition effectively between homes, the level of parental conflict is also a major consideration in the effective implementation of a well-drafted parenting plan.

Many children do not do well when their parents are in conflict. This reaction can be heightened in children with disabilities. Even young children read their parents’ emotional cues and may be acutely aware when their parents are distressed and emotionally unavailable to care for their needs. This creates disorganized attachment in children, creating a constant state of stress in a child, who both loves and fears a parent in distress and knows, based on their lived experience, that their parent will not be available to soothe them or respond to their need for affection and comfort. Children who frequently transition between warring parents’ homes often experience this constant state of anxiety:

Parents in conflict remain in heightened anxiety states all of the time. They are unable to nurture or reassure their children that everything will be “Ok.” Their children may feel disconnected from their parents. They may experience depression, loneliness and isolation. As children become more isolated from their parents, they become more afraid. They feel unsafe at home and this ripples out into their extended world of school, friends and activities. When a parent’s focus is on battling the “EX,” (the other parent), the children often become invisible to their parents. Parents must learn to calm down from their high anxiety state.Parents must create new bonds with their children so they feel loved, safe and connected to each of their parents again.

Some children with disabilities may be especially vulnerable to this sense of abandonment as they may be less able to rely on peers and others to meet their needs.

When drafting parenting plans, the drafter must be acutely aware of the parents’ relationship and realistically assess the likelihood of them working cooperatively together in the future. The best parenting plans anticipate potential issues between the parents, set forth clear guidelines and rules for co-parenting, and ultimately require a minimal level of parental communication to effectively respond to the current and future needs of their children, thus removing one cause of future parental conflict: the need to communicate daily with a difficult and controlling co-parent.

2. Communication Rules

Children do best when parents communicate effectively and can agree on schedules, exchanges, appointments, and the multitude of other decisions that parents need to make about their children. However, not all parents can or will communicate productively, and in those cases, a well-drafted parenting plan limits the need for regular parental communication and provides clear rules and structure for when communication is necessary.

A well-drafted parenting plan that limits the need for regular parental contact can help to minimize conflict. It is essential that a good parenting plan anticipate conflict in order to reduce the potential that parents will be embroiled in post-decree litigation.

Ideally, separated parents are able to regularly communicate with one another, without conflict, about schedules and the needs of their children. However, when parents have conflict and need to communicate, the parenting plan should provide clear rules and limitations on parental communication. These rules could include (1) a requirement that all communication should be in writing, such as by email or text; (2) a limit on the length of communications (for example, providing that an email should only have four sentences with only 20 words per sentence); and (3) restrictions on the number of communications absent emergencies (for example, only two written communications per week per parent). Of course, if the parents are getting along, they can share emails freely, but if they are not, these rules provide clear guidelines to allow parents to share information without bordering on harassing one another.

While these rules may surprise professionals who are not experienced with high-conflict custody cases, they can help to reduce persistent conflict between the parents that not only puts the parents in a constant state of anxiety but also the children, who may read their parents’ emotional responses and react to them.

3. Reversion Clause

After a separation or divorce, it is common for the parents to agree, in good faith, to share joint physical custody or for the court to order a joint physical custody schedule. However, for parents who want to try joint physical custody but are concerned about the impact the transitions may have on their child, one option is for the parenting plan to include a “reversion clause.” For example, the parenting plan could specify that if, in the first 60 days after the parenting plan goes into effect, the parents mutually agree, in writing, that their child with a disability is not adjusting to the joint physical custody schedule, they will temporarily revert to a primary physical custody schedule for not more than six months to allow their child to gradually adjust to the joint physical custody schedule. Alternatively, parents can agree to assess their child’s adjustment based on third-party reports from therapists, or other service providers who have an established relationship with the child. If the parents agree to rely upon third-party reports, the parenting plan should specify that the third-party reports must be based on objective observations demonstrating regression in the child, including increased aggression, soiling, or other clear objective indicators that the child is reacting negatively to the timeshare schedule.

Parents also can create a gradual transitional schedule or revert to a primary physical custody timeshare, on a temporary basis. For example, a gradual transition schedule may begin with the child spending afternoons or extended weekend days with Parent B for 30 days, adding one weekend overnight for the next 30 days, and thereafter adding additional overnights with Parent B until the child can adjust to the joint physical custody schedule outlined in the parenting plan.

An example of a reversion clause may specify:

In the event that the parents mutually agree, in writing, that [Child’s Name] is not adjusting to the agreed-upon timeshare schedule, the parents will revert to a temporary primary physical custody schedule with Parent A for a period of six months to provide a gradual transition schedule that will allow [Child’s Name] to adjust to the parents’ joint physical custody schedule.

OR

In the event that the parents receive reports from third-party providers who have an established relationship with [Child’s Name], including [name the providers working with the child at the time the parenting plan is drafted], that [Child’s Name] has increased negative behaviors, regression in developmental milestones, increased soiling, or other specific observations [include appropriate language based on the specific needs of the child], the parents agree to revert to a temporary primary physical custody schedule with Parent A for a period of six months to provide a gradual transition schedule that will allow [Child’s Name] to adjust to the joint physical custody schedule.

Ensuring that the challenges a child with a disability may face are met in the short term will improve the child’s and the family’s long-term adjustment outcomes. Including a reversion clause in the parenting plan can help to protect your client’s interest and safeguard the physical and mental well-being of their child.

4. Right of First Refusal

In negotiating a parenting agreement, parents can agree to include a “Right of First Refusal” provision. A Right of First Refusal provision requires the residential parent to offer the non-residential parent the opportunity to care for the child if the residential parent is unavailable during their timeshare.

While a Right of First Refusal clause could be for any period of time agreed upon by the parents, in our view a Right of First Refusal clause for periods of less than 24–48 hours should never be included in a parenting plan. If the parents get along, they can reach out to one another to care for the child in the other parent’s absence, trade timeshares, or make any arrangements that work for them. However, if the parents are unable to work cooperatively to arrange care for the child in the other parent’s absence, or if they are in a state of perpetual conflict, a child should not be shuttled between contentious parents for short periods of time. This is especially true for children with disabilities, particularly those who have a difficult time with transitions, including children with autism, depression, or Down syndrome, or who have a strained relationship with one parent.

A Right of First Refusal provision can interfere with the residential parent’s right to parent their child and decide the most basic scheduling for the child. For example, if a restrictive Right of First Refusal clause is in place, the residential parent may not be able to send the child to a preschool program, to visit grandparents or cousins, or even to spend the day at a friend’s house without first getting the approval of the other parent, who may interrupt the plans and demand that they be given the right to care for the child for even short periods of time.

Additionally, if the parents are not geographically close to one another, the residential parent, who is usually responsible for transportation when the Right of First Refusal is exercised, may spend extended periods of time transporting the child to the other parent’s home. Unfortunately, contentious parents can use this as one more way to harass their co-parent.

In our experience, the Right of First Refusal is often one of the most litigated clauses in court. While some parents continually seek to enforce the provision by arguing that the other parent failed to inform them when they left the child with a grandparent for an hour, other parents argue about whether the other parent’s chosen care provider has the knowledge and ability to care for the child. The reality is that each parent should have the right to choose who will care for the child during their timeshare when they cannot.

Therefore, the best drafting tip is simply not to include a Right of First Refusal and recognize that parents who get along will naturally rely on one another to care for their children in their absence. If the Right of First Refusal is included in a parenting plan, three rules should apply to the Right of First Refusal provision:

1. It should only be used for periods of more than 24–48 hours.
2. It should not apply to extended family members or the children’s events with friends (i.e., birthday party sleepovers, school trips, scout camping trips, etc.).
3. The receiving parent should provide transportation from the other parent’s home.

Following these basic rules will reduce the likelihood that either parent will misuse the Right of First Refusal while still allowing the parents the primary right and responsibility to care for their children.

An example of an acceptable Right of First Refusal provision may include:

In the event the residential parent is or will be unavailable to care for the child during their custodial timeshare for a period of 24 or more consecutive hours, the residential parent shall give the non-residential parent the right of first refusal to care for the child during the residential parent’s absence before engaging a third-party caretaker for the child. This provision shall not apply to the child’s time spent with family members, school trips, social engagements of the child, or community events such as scouting or religious activities.

5. Teenage Discretion

“Teenage Discretion” provisions allow teenagers greater autonomy to decide if and when they will spend time with each parent. In our experience, these provisions can be a source of contention for parents involved in high-conflict custody cases and could be especially challenging for some children with disabilities.

When making a best interest determination, courts generally consider the wishes of a child of suitable age and maturity. However, “teenage discretion” provisions in their purest form go beyond considering a child’s preference; they legally bind parents to allow their children to decide whether or not they will spend time with each parent, regardless of terms previously negotiated by the parties. Teenage Discretion provisions can create an unhealthy child/parent relationship and encourage alienating behavior by a parent who seeks to “entice” a child with fun activities that may disrupt the other parent’s time with the child. Teenage Discretion provisions also put children squarely in the middle of any parental conflict by potentially making them “choose” which parent to spend time with. For some children with disabilities, requiring them to choose between their parents can add to anxiety and stress, and can potentially be disruptive to their treatment.

6. Interim Contact with the Non-residential Parent

Parents often seek regular or even daily contact with their children during the time when the child is with the other parent, through phone, video chat, or other technologies. However, for some children and parents, particularly in high-conflict situations, daily phone/video contact may become unduly burdensome and interfere with the residential parent’s time with the child. Even in the best of custodial relationships, when children speak on the phone, they may need to disengage from their activities and re-engage following the phone call. When parents are in conflict with one another, for some children daily phone/video calls can add to the child’s stress, as the child may feel caught in the middle of the tension between them. This stress may be heightened for a child who has challenges in managing transitions.

Parenting plans can reduce this potential for conflict by limiting the number of interim phone calls by the non-residential parent. For example, the parenting plan may provide that the child will speak to Parent A twice during Parent B’s residential time (e.g., Tuesday and Thursday from 5:00–5:30 pm) and similar phone calls will be allowed for Parent B during Parent A’s residential time. Additional phone calls may be allowed by either parent but should not be required by the parenting plan.

7. Transportation

Parenting plans sometimes inadvertently omit transportation provisions, which can give rise to a significant amount of litigation. One common rule is that the receiving parent should provide transportation. For some children with disabilities, a specially equipped vehicle may be needed to transport the child.

A typical transportation provision may provide:

The receiving parent shall be responsible for providing transportation for their residential time from the child’s ___ school ___ daycare ___ Other: _____________.

A neutral exchange location removes the child from the comfort of each parent’s home and makes them readily available to the receiving parent without the potential for interference from the other parent or their family. The best neutral third-party locations include the child’s school, daycare, or, when necessary, through a family member or friend who is known to the child and friendly with both parents. Scheduling each parent’s custodial time to begin and end with the child’s school day or daycare allows the child to have a period of time between each parent’s home and typically reduces the child’s stress in transitioning between homes. If none of these options are feasible for parents, a retail store or restaurant with interior cameras may be an option.

Children need to be able to anticipate changes and not be in a constant state of anxiety, wondering what will happen next. As will be discussed below, a great transition routine can help in reducing a child’s stress and anxiety when moving between homes. For example, when the child is getting ready for school on the day of a transition, the residential parent can remind the child to take their favorite blanket or stuffed animal in their backpack, which signals to the child that they will be transitioning to the other parent’s home.

When the receiving parent picks up the child, that parent should also have a routine to help the child integrate into their home with minimal disruption. The reality is that the first five minutes of a parent’s interaction with their child may impact how the rest of the visit will go, so the parent should make it positive.

8. Family Pets

A family pet that travels between homes can provide emotional support for a child. Consideration should be given to sharing responsibility for a family pet.

If the parents can reach agreement, a parenting plan can include language to address this. For example:

• The parents agree that [pet’s name] shall transition between homes with the children.
• Each parent shall be responsible for providing all food and pet supplies for [pet’s name] while in their care.
• The parents shall equally share the cost of all necessary medical care for [pet’s name].

9. Vacation and Holiday Schedules

Parents need specific vacation and holiday schedules that provide uninterrupted time for each parent with the child. Consideration should be given to the unique circumstances of the child’s needs, particularly if the child has difficulty with transitioning between the parents’ homes or a difficult time with extended periods away from one or both parents.

a. Default Provisions

Holiday and vacation schedules set forth in a parenting plan are the default schedule but can (depending on the circumstance) be modified by written agreement of both parties based on the needs of their child, last-minute medical limitations of the child, or other considerations that may arise. The following provision should be at the top of a Holiday and Vacation Schedule:

The following holiday and vacation plan shall remain in effect unless (1) the parties agree, in a writing signed by both parties, to an alternate schedule or (2) by subsequent order of the Court.

b. Precedence

When parents schedule vacations, ordinarily priority should be given to parenting plan timeshares as follows: (1) holidays take precedence over (2) vacation periods, which take precedence over (3) regular timeshares.

For example, if Parent A has selected vacation time over the child’s winter break schedule, but winter break is assigned to Parent B in the parenting plan, who gets the child? Under the priority rules, winter break is considered a “holiday period” and trumps Parent A’s vacation election.

A typical Precedence Clause should include the following:

Precedence: The holiday schedule shall take precedence over vacation periods and vacation periods shall take precedence over regular timeshare periods. Where there is an overlap of conflicting holidays, the following priority shall prevail:

When parents have a child with a disability, depending on the child’s circumstances, parents should reasonably expect that there may be times when an emergent medical need prevents one or both parties from exercising their holiday or vacation time periods. However, neither parent should consistently schedule the child’s medical procedures, mental health appointments, or other therapies over the other parent’s holiday or vacation periods unless it is medically necessary. In fact, doing so consistently could constitute custodial interference.

c. Birthday Periods

If a child has a difficult time with transitions between homes, consider also discussing with parents not requiring that both parents see the child on their birthday and instead arranging for the child to celebrate their birthday with each parent on different days. In addition, while a typical holiday schedule may provide that each parent has the child on the parents’ respective birthdays, this could be omitted for children who struggle with transitions or changes in routine.

d. School Vacations and Religious Holidays

Some children may not do well with extended periods away from one or both parents. The parents should consider the needs of the child when determining if parenting time during school vacation or holiday periods (such as Thanksgiving, winter recess, spring break, or summer vacation) should follow the general parenting time schedule, or if it should be modified for a child to spend more time with either parent. For example, a parenting plan may include a Thanksgiving Break provision that includes either the entire school break period or a shorter period, depending on the child’s ability to transition between homes and function in large gatherings, such as a family Thanksgiving meal. A standard provision, which can be modified based on the needs of the child, may include:

Thanksgiving

The parents will share the Thanksgiving Break based on the following schedule, with the holiday period to begin upon the release of school before Thanksgiving and shall continue until school resumes following the holiday, at the time of the first morning bell.

OR

The parents will share the Thanksgiving holiday based on the following schedule, with the holiday to begin the morning of Thanksgiving at 10:00 am and continue until 5:00 pm the day of Thanksgiving.

If one or both parents observe religious holidays but a child is not able to transition between parental homes for short periods, parents should take that into account when developing a parenting plan. The parenting plan should list the religious holidays observed by either parent and include a schedule for which holidays the child would spend with each parent. When the parents celebrate the same holidays, the parents could divide longer holiday periods between the parents or provide that each parent may celebrate the holiday with the child on an alternate-year basis.

e. Vacation Selection Priority

It is vital that parents each have deadlines by which they must elect their vacation dates, particularly if their child has an Individualized Education Program (IEP) that provides for Extended School Year programming, or the child has an opportunity to participate in a camp with other children in their similar circumstances. Some summer programs can provide beneficial opportunities for children with disabilities to connect with others who face similar challenges.

In our experience it is not uncommon for one parent to try to interfere with these unique camp opportunities because they do not feel that the child’s needs will be met, or one parent believes that the child cannot manage away from one or both parents. However, a parenting plan could provide that each parent may schedule appropriate activities for the child during their timeshare so long as they do not conflict with any IEP services for the child.

A typical vacation selection priority includes the following language:

Vacation Selection Priority

Each year, the parent with selection priority shall provide notice of their summer vacation dates in writing via email to the other parent by March 1, with the other parent providing notice of their summer vacation dates in writing via email to the other parent by March 15. Failure to provide notice of summer vacation dates by the deadline provided shall constitute a waiver of priority and the other party shall have the right to provide written notice of their summer vacation dates, which shall take precedence for that year only. If a party does not provide written notice of their vacation dates by May 1, that party shall have waived their right to exercise a vacation period for that year only.

10. Sibling Timeshares

Parents who have multiple children, including one or more children with a disability, should consider their children’s needs and interrelationships when developing parenting plans. It is important to develop schedules that accommodate the needs of all of their children.

In some families, the parents may share joint custody of one or more children, but one parent has primary custody of a child with a disability. The parents may agree to this type of provision for the reasons noted above as to the selection of a primary parent, or because their children need one-on-one time with each parent. Some siblings of children with disabilities may experience increased stressors, including isolation and depression, resentment, additional household responsibilities, and a lack of quality time with their parents.

Parenting plan provisions can be drafted to adjust schedules for the needs of each family and their children. In addition, it is advisable that parenting plans also include regularly scheduled individual time for the children with each parent. For example, for two children:

Each parent shall have designated 1:1 time with each child. Parent A shall have [Child A] on the 1st and 3rd Sunday of the month from 9:00 am to 12:00 pm and [Child B] shall stay in the care of Parent B. Parent B shall have [Child A] on the 2nd and 4th Sunday of the month from 9:00 am to 12:00 pm and [Child B] shall stay in the care of Parent A.

11. Education

Children with disabilities may require specialized educational programming or accommodations, as set forth in an Individualized Education Program (IEP) or a 504 Plan. The Individuals with Disabilities Education Act (IDEA) requires public schools to provide a “free appropriate public education” (FAPE) for a child determined to have a qualifying disability. The specialized instruction, educational supports, accommodations, and/or services (such as speech or occupational therapy) to be provided for the child are set forth in an IEP developed in accordance with federal requirements. The IDEA includes specific provisions for parental involvement in requesting or consenting to evaluation of a child, developing an IEP, obtaining educational records, and challenging agency determinations.

In order to minimize potential conflict over parental involvement in educational decision-making for children with disabilities under the IDEA and other laws, parenting plans should be specific about each parent’s authority in the assessment and decision-making process and their access to educational records. If the parents are unable to collaborate, the court may appoint one parent as the child’s educational decision-maker, even in a joint legal custody arrangement.

12. Health Care Providers

A parent generally has authority to obtain emergency medical care for their children even in the absence of consent by the other parent. When the parties have joint legal custody, non–emergency medical providers should be selected jointly by the parties. Unfortunately, it is not uncommon that parents cannot agree on a child’s medical providers and, therefore, a court may assign decision-making authority for health care to one parent, even in a joint legal custody arrangement.

For children with disabilities, it is especially important that parents work cooperatively to obtain the necessary health care to address their child’s neurodevelopmental, physical, and mental health needs. Parenting plans must specify the rights and obligations of the parents regarding health care providers and each parent’s decision-making authority for the child.

Typical parenting plan provisions may include:

Emergency Medical Care

Each parent is authorized to obtain emergency medical care for the child and shall notify the other parent of the situation as soon as reasonably practical.

Non–Emergency Medical Care

The parents shall agree to all non–emergency health care, including surgical and medical procedures, psychotherapy, neuropsychological services, orthodontia, vision care, educational therapy, behavioral health services, ABA services, equine therapy, occupational or speech therapy, and other assessments or treatments [adapt language based on the needs of the child].

Participation for Medical Appointments

• The residential parent shall take the child to all health care appointments and/or make the child available for all in-home appointments OR
• Parent A shall attend appointments with the following providers: [LIST]
• Parent B shall attend appointments with the following providers: [LIST]

13. Medical Insurance Coverage and Child Support

Families of a child with a disability may have significantly more expenses—including out-of-pocket or uncovered medical expenses. Depending on the child’s needs, expenses can include specialized medical equipment, adaptive appliances, modification to vehicles, alternative therapies, medical appointments, and/or speech and occupational therapies, some of which may not be covered by insurance or may result in increased insurance premiums and/or out-of-pocket expenses.

Some children with disabilities are eligible for Medicaid or the Children’s Health Insurance Program (CHIP), while other families rely exclusively on private insurance. The out-of-pocket costs for a child with a disability can be substantial and exhaust a family’s resources. Middle-income families may face significant challenges in managing the financial obligations of a child with a disability, as they may not qualify for many government-subsidized programs, such as Medicaid or Supplemental Security Income (SSI), yet their income and insurance benefits may not fully cover their child’s medical and therapeutic needs.

A key factor for parents with shared custody is comprehensive insurance coverage to defray out-of-pocket costs. This is particularly important for parents of a child who has significant medical, mental health, and therapeutic needs and may require specialized caretakers and/or a specialized case manager who can assist with locating, retaining, and securing appointments with providers who will address a child’s needs.

Federal law requires that state child support guidelines and orders include provisions for health insurance or other medical support for the child. Child support payments are payments made by one parent to the other for the support of children. Child support is based on one or both parents’ earnings, and may depend in part on the parenting time schedule or how many days the child stays with each parent. In addition to addressing health insurance costs, states may provide for child support to be adjusted for medical expenses not covered by insurance.

Parents can and should reach agreement on health care coverage and, where possible, consider if each parent can obtain insurance for the child through their respective employers. Even with the best coverage, many therapeutic and other specialized services for a child with neurodevelopmental disorders, mood disorders, and other specialized needs are not covered by insurance. The Parenting Plan and Child Support order should address each parent’s responsibility for these services.

Parenting plans should provide for the selection and payment of providers. For example:

Covered Providers

The parents agree to retain medical, mental health, and other providers who are covered by the child’s health insurance, when coverage is available.

Uncovered Providers

All evaluations and services will be provided by trained, licensed, and experienced professionals who are willing to report to the Court as necessary, while concurrently having the child’s health and development as the primary goal, even if this includes a non-covered provider.

Third-Party Decision-Maker

In the event the parents are not able to make a decision on health care, they agree to rely on the recommendations of the child’s current pediatrician or, in the alternative, agree to retain a Case Manager through their respective insurance plans, if available. If their insurance plan does not provide a Case Manager, the parents agree to jointly retain a Case Manager to coordinate service providers for their child. In the event the parents are required to privately retain a service provider, they will share the cost of retaining the Case Manager as follows: (specify cost sharing).

Reimbursement for Medical Costs

The child’s out-of-pocket medical expenses shall be reimbursed to the incurring parent pursuant to the 30/30 Rule. The 30/30 Rule requires that a parent who incurs a necessary medical expense, including, without limitation, doctor visits, hospitalizations, prescription medications (not including over-the-counter medications), and other necessary expenses, shall have 30 days after incurring the expense to provide proof of payment to the other parent. A parent who fails to timely provide evidence of payment of such expense shall be deemed to have waived the right to reimbursement. Once the other parent receives proof of payment of the expense, that parent has 30 days to reimburse the parent who incurred the expense for half of the expense incurred. Failure to timely pay such reimbursement shall be deemed a violation of this order and shall entitle the incurring party to attorney fees and costs in collecting the obligation.

Additional considerations should be set forth in the parenting plan to ensure that the parents coordinate any prescription medicine for the child between their respective homes. For example:

Medication Management

Parent A or Parent B shall be responsible for refilling prescriptions monthly, as allowed by insurance, and providing the other parent with a sufficient supply of all prescribed medications

14. Planning for the Future

Some children with disabilities, including some children with intellectual or developmental disabilities, may need ongoing care as adults. While these issues are beyond the scope of this article, parents should consider their child’s future caregiving as well as financial needs.

Adult children with qualifying disabilities may be eligible for Medicaid and SSI or other government benefit programs. Additionally, many states require child support from one parent to another for the support of a disabled child beyond the age of majority. However, the amount of child support due may reduce the adult child’s eligibility for federal or state benefits received, including SSI. If a child has assets or receives income, a Special Needs Trust (SNT) may be set up to preserve the adult child’s eligibility for needs-based (referred to as “means-tested”) government benefits, such as Medicaid or SSI.

The SNT is set up outside of the parenting plan and a qualified trust attorney should be retained to ensure that the trust protects the beneficiary’s assets while still allowing the beneficiary/adult child to qualify for needs-based benefits.

15. Death of Parents

The death of one or both parents is particularly difficult for any child. The death of a parent is especially difficult for a child who, because of the nature of their disability, may never become self-sufficient and may need a third-party caregiver throughout their life

The parenting plan should require each parent to designate in their will or trust a guardian to care for the child with a disability, in the event of both parents’ death.

Typical parenting plan provisions may include:

• In the case of the death of both parents, the parents agree that ____ will be the guardian of our child. Each parent agrees that their personal wills and trust will incorporate this provision and provide funds for the care and maintenance of our child.
• Each parent agrees to allocate ____% of their estate for the care of our child, due to their disability [specify].
• It should be anticipated that a child will outlive their parents. Therefore, these types of provisions are particularly important for parents with children who are unlikely to be able to become self-supporting and independent adults.

Conclusion

A well-drafted parenting plan can safeguard the interests of parents of children with disabilities by providing clear guidelines for legal and physical custody, as well as specifying the rights and obligations of the parents throughout their child’s minority and into adulthood.

The family attorney who drafts parenting plans can provide a clear Instruction Manual for Co-Parents by anticipating the parents’ needs and helping the parents establish guidelines that allow them to cooperatively and peacefully parent their children. Ultimately, the legal practitioner can be the gatekeeper for each family’s present and future success.