CREATING TRUE SHARED PARENTING IN AN UNFRIENDLY LEGAL ENVIRONMENT
January 7, 2014 by Don Hubin, Chair, Executive Committee, National Parents Organization of Ohio
Many of us, unfortunately, live in states where statutory provisions and court practices make true shared parenting difficult to achieve. In my home state of Ohio, for example, there is no legal preference for shared parenting and many cases that are designated “shared parenting” are shared parenting in name only. Over the last two decades, many parents have shown me their shared parenting orders which, two pages into the order, say things like, “under this shared parenting plan, mother shall be the custodial and residential parent and father shall have parenting time with the children according to the following schedule.” These parents walked out of court, thinking they had true shared parenting only to realize later that they’d been sold the proverbial “pig in a poke.”
Even when both parents are clearly designated custodial and residential parents in their parenting plan, courts sometimes try to treat the parents unequally based on irrelevant asymmetries. For example, I’ve seen cases where the designation of one parent as the residential parent “for school placement purposes” was used to conclude that this parent was the sole custodial parent.
Those of us who are advocates for true shared parenting often find ourselves in a legal environment that is unfriendly to shared parenting. Such an environment can make true shared parenting harder to achieve. But there are strategies that can improve your chances of succeeding. Here are a few worth considering and discussing with your attorney.
The Basics:
- Explicit Designation of Residential Parent and Legal Custodian Status: Every plan for true shared parenting should explicitly designate each parent a residential parent and legal custodian of the minor children. The language doing this should be entirely symmetric. Avoid language such as “Father is the residential parent and legal custodian of the children except when the children are with Mother.” Instead, say, “Father and Mother are each designated residential parent and legal custodian of the children while the children are in their care.”
- Avoid Asymmetric Language in General: In any parenting plan, do not speak of the children “residing with” one parent and “visiting” the other parent. Children do not visit their parent. Do not use “parenting time” as a synonym for “visitation”. It is fine to use the term “parenting time”, but it should be used for the time with each parent, not just with one. Children do not live with one parent and have parenting time with the other; they reside with, live with, or have parenting time with eachparents according to a schedule.
- If Asymmetric Language is Necessary, Explicitly Limit Its Implication: When absolutely required to designate one parent “residential” for school placement purposes or for purposes of receiving public assistance benefits, explicitly limit the asymmetry to this function. Add language like, “…and for no other purposes.”
Pro-Active Strategies
In many states, courts have struggled with the issue of how to calculate presumptive (guideline) child support in shared parenting cases. Because of this, special attention needs to be given to crafting a shared parenting plan so that it will work as intended. Courts always retain the authority to adjust child support levels, and a victory for true shared parenting in the initial decree of divorce can be partially undone by later administrative and court actions if the shared parenting plan and other court documents are not carefully drafted.
In many states, courts have struggled with the issue of how to calculate presumptive (guideline) child support in shared parenting cases. Because of this, special attention needs to be given to crafting a shared parenting plan so that it will work as intended. Courts always retain the authority to adjust child support levels, and a victory for true shared parenting in the initial decree of divorce can be partially undone by later administrative and court actions if the shared parenting plan and other court documents are not carefully drafted.
- Maintain Symmetry in Child Support Worksheets and Deviation Entry: In many states, parents engaging in shared parenting must use the same worksheet used in sole custody cases. This presents an opportunity for asymmetries to enter and the equality of the shared parenting to be undermined. The child support amounts agreed to pursuant to a deviation from one parents’ child support obligation at one time may be very inappropriate at a later time when child support is recalculated.
One strategy for dealing with this problem is to complete and submit two child support worksheets, one designating the mother as the child support obligor and one designating the father as the child support obligor. This allows the court to see the effect calculating the child support obligation each way and helps combat the mindset that the only question is how much of a break to give dad when he’s an equal parent.
- Use “Nominal” Split Custody to Create “Real” Shared Parenting: When more than one child is subject to the parenting plan, it is possible to create true shared parenting by employing a split custody decree, a decree that designates each parent the sole custodial and residential parent for at least one child. This sounds like splitting up the children, Parent Trap style. In most cases, that would be a very bad solution; most children—especially those adjusting to a post-divorce living situation—need to maintain strong relationship with their siblings. But, split custody can be combined with a parenting plan that does not divide the children for parenting time and requires agreement between the two parents on all major decisions concerning the children. If this is done, the effect can be true shared parenting despite the fact that one parent is designated the sole residential parent and legal custodian for at least one child and the other parent is so designated for at least one child. This approach can help to achieve the proper outcome with respect to child support, too, since each parent will be the presumptive obligor for at least one child and each will be the presumptive recipient for at least one child. The court can then make an appropriate adjustment from these baselines.
National Parents Organization is working to make true shared parenting the default outcome when parents divorce or separate. I hope you’ll assist National Parents Organization in this worthy effort. Progress is being made but we have a long way to go still. In the meantime, parents need to recognize that many laws and practices of courts and government agencies create an unfriendly environment for true shared parenting. Parents need to take special care to ensure that true shared parenting can be achieved in such an environment.
