There are all sorts of different words that attorneys, judges, Guardians ad litem, divorce coaches, and others in the family law space use to describe the tools that we utilize in divorce and custody cases. A ‘parenting plan’ is a good example, because it’s one you hear over and over, but it’s also one that might, somewhat interchangeably, be used with another term or phrase, depending on where you are in the world.
Custody Plan v. Custody Agreement
Parenting plan has become, I think, a more egalitarian way of describing a custody and visitation agreement. Even though, in Virginia, when you file petitions, you still file ‘custody and visitation’ petitions, the word ‘visitation’ has fallen somewhat out of style. Parents don’t visit, after all; whether they’re primary coparents or equal coparents or near-total deadbeats who are counted on to flake more often than they actually show up, what they’re doing, we are told, is parenting.
What does ‘coparenting’ mean?
Coparenting, too, is a word that – it seems to me, at least – is used, mostly by the court, to describe any parenting arrangement where there are two parents who are no longer together. Even though I think it’s probably more accurate to describe the coparenting relationship dynamics more specifically (whether they’re collaborative, parallel, or counter-parenting), we still use ‘coparenting’ in the law and in the courts to describe all manner of relationships.
What is a parenting plan?
A parenting plan is just that – a plan for how parenting time (the amount of time that each coparent has with the child(ren) in question) will be shared. This does not assume, in a technical sense, that parenting time will be awarded according to a shared custody dynamic, but it does mean that the coparents will share the time according to whatever plan they can reach an agreement on.
It is the same thing as a custody agreement! This just differentiates between custody that is ordered by the judge in court and custody agreements/parenting plans, which are agreed upon by the coparents themselves.
How can parents share physical custody of their children in Virginia parenting plans?
In Virginia, there are three ways that physical custody can be shared, and the rule is that the judge is supposed to consider all forms equally.
Shared physical custody refers to a custodial dynamic where the non custodial parent – the parent who has the child less – has somewhere between 90 and 182.5 days in a calendar year. It’s not necessarily 50/50, but it’s a plan where the lesser custodial parent has more time than under a traditional primary physical custody scenario. For that reason, shared physical custody also comes with a reduction in child support. Once a coparent reaches that 90 day minimum, child support starts to reduce. It’s on a sliding scale, so the more time that coparent has, the less he will likely pay.
Primary physical custody refers to a custodial dynamic where the non custodial parent has 89 or fewer days with the child(ren) over the course of a calendar year. In this scenario, the non custodial parent pays the most child support based on the formula.
The last type of custodial arrangement – and the one least likely to be ordered by a judge – is split physical custody, where there are different custodial arrangements for each child. Under a normal parenting plan, all of the children share the same arrangement (at least, until they start turning 18 and are no longer bound by custody agreements/parenting plans at all). But certain circumstances may require that different arrangements meets different children’s needs best, so – though judges don’t usually order this – it is still an option that parents can choose if they feel its most appropriate.
Is it better to negotiate a parenting plan or let a judge decide?
There are few ‘one-size-fits-all’ situations in family law, but most people are better off if they can negotiate their own parenting plans themselves.
Custody and visitation orders entered by the court are often entered without a real understanding of the lives of the people involved and are more generic, rather than specific. If you want customized provisions included, you are less likely to be successful than you are if you were to draft a custody agreement or parenting plan yourselves (or with assistance of counsel).
Not every coparent is going to be willing to work on an agreement, though, so – if you just can’t reach an agreement – it is important to know that you can take it to the court for resolution.
In general, though, I recommend that coparents be as specific as possible in their parenting plans; that ‘reasonable and liberal visitation’ stuff is just a recipe for disaster. Whatever you agree to, make sure to specifically document it. Everything should be included, from when and where pick up and drop off should take place, to how holidays and school breaks will be handled, summer vacation, sick and snow days, and more. Whether you want specific provisions, like a right of first refusal, something about introducing new romantic partners, or to specifically remove someone from consideration as a potential babysitter (hellooo ex-mother-in-law), you want to be sure to put that information in there specifically. The more details, in my experience, the better!
It can be hard to think through all of the things that you might reasonably want included, so it’s a good idea to at least consult with a family law attorney – even if you ultimately decide not to hire one – before you sign. Keep in mind that, once you sign, you’ll be bound to the terms of the agreement – at least until you have a material change in circumstances. Custody, visitation, and child support ARE modifiable if there has been a material change, but that’ll put you right back where you are now. Either you reach an agreement (whether on your own or with assistance of counsel or even a mediator) or you go to court and let the judge decide, which, as you know, is a difficult and uncertain position to find yourself in, especially over and over.
The best parenting plans include as many details as possible, even if it’s difficult to reach agreement on the trickier points, because clarity allows both coparents to move forward into the future knowing what to expect. Knowing what to expect, even if it’s not exactly what you wish would happen, is a major factor that insulates you against repeat and ongoing custody issues, because at least no one can say that they didn’t realize what they were getting into. Those generic ‘reasonable and liberal’ visitation provisions create more problems than they resolve because each parent is looking to different parts to see what they want to see. Mom sees “reasonable,” and thinks she’ll have some control over what it looks like; dad reads “liberal,” and thinks it means something like 50/50. This differing mindsets create a clash that literally invites more conflict, rather than resolving it. A good parenting plan works hard to resolve it up front, hopefully even stemming the flow of future issues that might cause you to wind up in court again.
For more information about custody cases or to download our guide for Virginia moms, give our office a call at 757-425-5200 or visit our website at hoflaw.com.