“...the most common measure is the number of overnights because it is one of the primary components in most child support calculations.”
What is Parenting Time?
Parenting time is literally the amount of time that the children spend with each parent.
Parenting time orders are amongst the most complex of all orders because they must be tailored to fit each and every family and the ever-changing circumstances they face. The most subjective of the circumstances includes the parents’ work schedules and the availability to provide physical care of the children. For an example, a parent who works nights or who lives in another state will likely have substantially less parenting time than the other parent. Parenting time is often described in hours, days, weeks and months. However, the most common measure is the number of overnights because it is one of the primary components in most child support calculations.
This issue can be less difficult to resolve in cases where there is little flexibility.
For example, servicemembers, airline pilots, firemen and other professions that require frequent or extended travel generally provide that parent with less grounds for equal or even significant parenting time. The Court will consider domestic violence and child abuse as a threshold issue. However, in all cases, the Court will consider a number of factors, which include:
Wishes of the parents, which are rarely in harmony. Most often, both parents want to be the primary parent, or more specifically, want more of the school week than the other parent.
Wishes of the children, if sufficiently mature to make reasoned and independent wishes. There is no specific age at which the Court deems the children old enough to decide their own fate. However, the older the children are, the more weight the Court will give their wishes. Many practitioners will suggest that children are old enough when they reach an age between 12 and 15 years old. A wish to live with the parent who lives in the same neighborhood as a child’s friends is an example of a reasoned wish. Living with a parent who permits a child to stay up late or enjoy less rules is an example of a wish that is likely not independent.
Pattern of involvement, which suggests that the history of contact with the children is an indicator of future contact. While the Court may balance the quality and quantity of the parents’ contact with the children, the Court will always give credit to a parent who provides the majority of the financial support of the children, which can be equivalent to the physical support provided by the other parent who may be a homemaker. In other words, the primary care provider will not necessarily be the primary parent when the parents live apart.
Physical and mental health of the parents and children, especially if there are issues that impact a parent’s ability to provide appropriate care for the children. These issues often include substance abuse, bi-polar disorder and depression.
Ability to encourage the loving and affection between the child and the other parent, often the most misunderstood or forgotten factor. A parent who wishes to be the primary parent will be accused of lacking such ability. Avoiding the accusations while still pursuing primary parenting time definitely requires an appropriate strategy. The most common allegation within this factor is alienation. Many courts and judicial officers do not necessarily subscribe to the theory of alienation. However, most Courts recognize some form of brainwashing, coaching or active denigration of a parent as problematic endeavors in becoming the primary parent.
Proximity between the parents’ households is the most practical of all factors because the distance can often create a barrier to certain parenting time schedules. For example, a commute to school that approaches 30 or more minutes will likely be disfavored by the Court.
Ability to place the children’s interests first is the other counter-intuitive factor, like the ability to encourage. This factor can apply to almost any circumstance but involves a parent’s ability to place the needs of his/her children ahead of his/her own. For example, insisting that the children go to the school near one parent’s home when clearly the school near the other parent’s home is far superior is not indicative of a parent’s ability to prioritize the children’s needs.
There are no two parenting plans that are alike. The most common shared parenting time schedules include the 5-2-2-5 or 4-3-3-4 schedules that give the parents substantially similar access to the children’s education and activities and often depend on the children’s ability to tolerate absences from one or both parents. Occasional dinner visits are one way to ameliorate such absences. The most common primary physical care schedule is the every-other-weekend schedule. This schedule gives the primary parent the majority of the parenting time and responsibility for education while giving the other parent non-school time. This schedule may be implemented when a parent may be ill-equipped or unavailable to provide shared physical care. In general, the firm believes that while the past may impact the future, it does not necessarily mean they will end up being the primary parent when the parties separate. However, if a parent wants equal parenting time but has never, or is not prepared to take on the responsibilities that come with such a schedule, it is unlikely to occur. Because child support is the same in cases where the non-primary parent has less than 93 overnights, the parenting time issue can be easier to resolve because the parents’ motives are less financially driven.
Within most parenting plans is a provision for exchanges, which identifies who provides transportation for the children to and from the other parent’s home or other locations. Clearly the farther apart the parents live from each other, the more contested this issue becomes. A parent who lives or moves far away will often prompt a demand that such parent do all or a majority of the transportation. In high conflict cases, exchanges can be implemented to ensure the children’s safety and to avoid contact between parents who do not get along. For example, conducting all exchanges at school is a way to avoid face-to-face contact between parents with a history of domestic violence.
Perhaps the most difficult issue when allocating parenting time is when one parent intends to move or wants to relocate with the minor children to another state or to a location that creates a significant geographical barrier to shared parenting time schedules. In an initial allocation of parental responsibilities matter (or pre-decree in a divorce with children action), the Court will consider only the statutory factors discussed above. In other words, the Court must consider where the parents intend to live and fashion a parenting plan that serves the best interests of the minor children. In such cases, the Court tends to give more weight to the factor that evaluates the past pattern of involvement of the parents in the care of the children. Sometimes a move is inevitable and sometimes it is simply desirable, especially when one parent may have moved to Colorado and lacks the support he/she may need once the parties are separated.
Even more difficult is the high conflict relocation issue. In addition to the statutory factors identified above, the Court will also consider the “relocation factors.” These factors include: the reason a parent wants to move, the reason the other parent objects, the associated travel requirements, the connections the children have to the new location, etc. This issue is one of the most difficult issues to settle in any domestic relations case and a decision that most judicial officers loathe to make. Any practitioner will tell you that relocation cases are amongst the most difficult to litigate because in a court that sits in equity, the parents usually feel like they either won or lost because it is impossible to be fair to both parents in such cases.
Parenting Time Services
Attorney Márquez’s extensive experience in high conflict, complex financial, and high asset family law cases affords him the unique ability to help parties find detailed and often creative solutions to solve their cases. He is an empathetic and active listener, but more importantly, he is honest, practical and effective. Less time is spent on rehashing the conflict than on understanding the conflict to formulate options that lead to resolutions.
We look forward to assisting you find ways to resolve your complex cases efficiently and fairly.