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08/02/12 It's The Law: Parenting Plan Must Be Approved By The Court

Question:

I am in the midst of a divorce. My attorney said we must prepare a parenting plan for our children. He also told me the plan must be approved by the court and if my spouse and I cannot agree on a plan the court will create one. Can you explain the court’s involvement with a parenting plan and how it works?

Answer:

In 2008, Florida’s legislature enacted an amendment to our divorce laws that requires a specific parenting plan in all divorce cases with minor children. That amendment replaced statutes that required establishing primary residence of a child with little guidance as to other aspects of relations between parents and children after divorce. About the only major component of the old arrangement brought forward into the parenting plan is that there continues to be a presumption in favor of both parents making decisions regarding the minor child, a concept known as shared parental responsibility.

All parenting plans must be approved by the court. A plan must, at a minimum, describe in detail how the parents will share and be responsible for the daily tasks associated with the upbringing of a child; the time sharing schedule, specifying the time the minor child will spend with each parent; designate who is responsible for health care, school related matters and other activities; and the methods and technology the parents will use to communicate with the child.

To assist the parties and attorneys in drafting a plan, Florida’s Supreme Court promulgated a check the box and fill in the blank form in 2009, which was amended in 2010, and 2011. The form includes detailed options with respect to residence and time sharing, including a list of seventeen holidays and other important dates for time sharing purposes. It addresses transportation and exchange of children, communication, education and other provisions. It is an attempt to carry out intent of the statute, which is to mandate creation of a plan detailing all aspects of relationship between divorced parents and their children to avoid future dispute and provide a clear line for court enforcement.

Mandating a parenting plan is an effort to solve two problems. First, parties to divorce frequently entered vague arrangements for time sharing and decision making, such as “reasonable visitation.” That left open much for argument in the future. The second problem was that courts could not find anything specific when one parent complained that the agreement was not being met or when one parent requested a change in the agreement. Under the old business model, and even under the new parenting plan, a court can change the arrangement if it finds substantial and material change in circumstances. If was often difficult to make that finding when the agreement, itself, was vague.

Even where the parties agree on a parenting plan, the court is still required to review it. The statutes require the plan be in the best interest of the children. Interest of a parent is not a determining factor.

In a recent appellate case, the parents entered a settlement agreement and parenting plan in which they waived spousal support, agreed on distribution of assets, and provided they would share time with two children equally on a rotating basis. Prior to entry of the final judgment, the mother filed a motion to set aside the settlement agreement and parenting plan on grounds that it was based on fraud, it was unfair and that the former husband did not accurately disclose his income and assets. The mother alleged that it was no longer in the children’s best interest to reside with the former husband every other week because the husband had an anger management problem and had been physically abusive to her in the presence of the children.

The trial court refused the wife’s effort and entered judgment adopting the plan. The appellate court reversed. First, the appellate court noted the trial judge did not consider best interests of the children in considering the plan. Second, the appellate court ruled the trial judge applied the wrong standard to review of the wife’s challenge. Because the wife challenged the plan before it was adopted by the court, the judge was required only to consider best interests of the children. The judge applied the wrong standard in ruling that the mother’s effort to change the plan required her to prove a material and substantial change in circumstances. That standard would only apply if the judge had adopted the plan prior to the challenge.

The benefit of a parenting plan is that both parents and the court must now detail an exact arrangement for decision making, time sharing, communication and other important aspects of their children’s’ lives. It provides a better road map and guide for post-divorce action of the parents. It likely reduces conflict and helps advance the best interests of the children. Proper drafting of a plan requires careful discussion with an experienced attorney and review of how a proposed plan will impact both children and parents. That makes good legal advice critical.

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