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Drafting Considerations for Parenting Plans
While focus in family law matters tends to center on financial issues, such as support or division of assets, it is the parenting provisions that are often utilized by parties day-to-day, and which are also frequently later litigated ' whether through modification or enforcement actions ' after an initial proceeding has concluded. Consequently, while attorneys and the courts look to parenting plan provisions to alleviate tension and provide a mechanism by which to assist parties in operating on a daily basis, missed parenting plan provisions, or ambiguous ones, can lead to confusion and conflict between parents down the road. It is important, therefore, to consider incorporating, or at least discussing, the following issues prior to finalizing any parenting plan.
Decision-Making
Making major decisions that affect the everyday life of the parties' minor children is something that can be made much more difficult by divorce, or by parents who have not otherwise previously been required to work together to reach a united decision. Courts nonetheless often favor and encourage parties to engage in “shared parenting,” a requirement for parents to consult and confer with each other so that decisions affecting the well-being of their children can be made jointly. While such “shared parenting” is aspirational, it is not always realistic ' particularly in high-conflict cases. Therefore, provisions beyond standard requirements to exercise shared parental responsibility can serve to avoid conflict in the future. For instance, while parenting plans can require parties to start with shared parenting, it may be preferable to assign a party with ultimate decision-making authority over specific areas, such as education, activities, and healthcare. Further, a provision that allows a parent to make a decision unilaterally if he or she has not been able to communicate with an unresponsive party may also help to avoid unnecessary delays.
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