• What is a parenting plan?
• What is the difference between the custodial parent and primary residential
• What factors will the court consider in deciding which parent will be the
• Which parent has the final say so?
• What happens if the parents cannot agree on a decision involving the
• What are the rights of the noncustodial parent?
• What happens if the child wants to live with the other parent?
• If both parents split parenting responsibilities, can one avoid paying child
• If my ex-spouse refuses to make children available for visitation, do I have
to pay child support?
What is a parenting plan?
A parenting plan is a written document
allocating parenting responsibilities, establishing child support, and
establishing a permanent residential schedule. The residential schedule outlines
when the children are in each parent's care and designates the primary
residential parent. The parenting plan is very detailed in that it states dates,
times, holidays, etc. for visitation. If you and your spouse cannot agree on a
parenting plan, you must first go to mediation before the court will hear the
case. Additionally, you are required to attend a four hour parenting class
within thirty (30) days of filing the Complaint for Divorce or being served with
What is the difference between
the custodial parent and primary residential parent?
The primary residential parent is the
parent whom the child normally resides with more than fifty (50%) percent of the
time. Since most parenting decisions fall under the day to day designation, the
designation of primary residential parent is very important. Under prior law,
the custodial parent meant the parent who exercised final decision making
authority and the parent with whom the child primarily resided. However under
the new parenting plan law, final decision making authority is separate from
residential time and can be fragmented between the parents by categories, such
as: education, religious training, extra curricular activities.
What factors will the court
consider in deciding which parent will be the residential parent?
The court will consider the following
factors in determining the primary residential parent:
(1) The parent's ability to instruct,
inspire, and prepare the child to compete successfully in society which the
child faces as an adult;
(2) The relative strength, nature, and
stability of the child's relationship with each parent, including whether a
parent has taken great responsibility for performing parenting responsibilities
relating to the daily needs of the child;
(3) The willingness and ability of each
parent to facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent, consistent with the best
interest of the child;
(4) Willful refusal to attend a court
ordered parent education seminar may be considered by the court as evidence that
the parent's lack of good faith in the proceedings;
(5) The disposition of each parent to
provide the child with food, clothing, medical care, education, and other
(6) The degree to which a parent has
been the primary care giver, defined as a parent which has taken greater
responsibility for performing parental responsibility;
(7) The love, affection, and emotional
ties existing between each parent and the child;
(8) The emotional needs and
developmental level of the child;
(9) The character and physical and
emotional fitness of each parent as it relates to his or her ability to parent
or as it relates to the welfare of the child;
(10) The child's interaction and
interrelationships with siblings and with significant adults, as well as the
child's involvement with his or her physical surroundings, school, or other
(11) The importance of community in the
child's life and the length of time the child has lived in a stable,
(12) The evidence of physical or
emotional abuse to child, to other parent, or to any other person;
(13) The character and behavior of any
other person who resides in or frequents the home of the parent and such persons
interaction with the child;
(14) The preference of the
child if the child is twelve (12) years of age or older. The court may hear the
preference of a younger child upon request. The preference of an older child is
normally given greater weight than the preference of a younger child;
(15) Each parent's employment schedule,
and the court may make accommodations consistent with those schedules; and,
(16) Any other factors deemed relevant
by the court.
No one factor controls and each must be
weighed and considered in relation to the other.
Which parent has the final say
Under a permanent parenting plan, the
parent allocates decision making authority to one or both regarding the child's
education, health care, extra curricular activities and religious upbringing.
Therefore, final say so depends upon the topic. The permanent parenting plan
must also state that each parent may make the day to day decisions regarding the
care of the child while the child resides with that parent. Regardless of the
allocation and decision making in the parenting plan, the parties may agree that
either parent can make emergency decisions affecting the child's health, safety
What happens if the parents
cannot agree on a decision involving the children?
If the parenting plan provides for
joint decision making and the parents cannot agree, they must first follow the
dispute resolution process set forth in the parenting plan before seeking court
intervention. This could be court ordered mediation or consultation with an
independent third party agreed to by the parents. A disagreeing parent can
challenge the other parent's decision authority on the basis that the action
taken is not in the best interest of the child. The court will rarely overrule
the parent's decision unless it will endanger the child.
What are the rights of the
The noncustodial parent has the
following rights when the child is not in his or her care:
(1) To unimpeded telephone
conversations with the child at least twice each week at reasonable times and
for a reasonable duration;
(2) To send mail to the child which the
other parent shall not open and will not censor;
(3) To receive notice and relevant
information as soon as practical (but within twenty-four hours) in the event of
hospitalization, major illness, or death of the child;
(4) To receive directly from the
school, upon written request, which includes a current mailing address, and upon
payment of reasonable costs of duplicating, copies of the child's report card,
attendance records, names of teachers, class schedules, standardized test
scores, and any other record customarily made available to parents;
(5) Unless otherwise provided by law,
to receive copies of the child's medical, health or other treatment records
directly from the physician or health care provider who provided such treatment
or health care upon written request which contains a current mailing address and
upon payment of reasonable costs of duplication, provided that no person who
receives the mailing address of a parent as a result of this requirement shall
provide that address to the other parent or to a third person;
(6) To be free of derogatory remarks
made about such parent or such parent's family by the other parent to or in the
presence of the child;
(7) To be given at least forty-eight
(48) hours notice, whenever possible of all extra circular activities, and the
opportunity to participate or observe in those activities, including, but not
limited to, the following:
(a) school activities;
(b) sports activities;
(c) church activities; and,
(d) other activities during which parental participation or observation would be
(8) To receive from the other parent,
in the event the other parent leaves the state with the minor child for more
than two (2) days, an itinerary, including telephone numbers, for use in the
event of an emergency;
(9) Access and participation in the
child's education, including the right of access to the minor child for lunch
and other activities, on the same basis that is provided to all parents,
provided the participation access is reasonable and does not interfere with day
to day operations or with the child's educational performance.
(These rights also apply to the primary
residential parent when the child is spending time with the other parent.)
What happens if the child wants
to live with the other parent?
The child's preference for a change of
primary residential parent, by itself, will not constitute sufficient cause for
modification. However if the child is over twelve (12) years old, the court will
give more weight to the child's preference. The court will look closely at the
child's reason for wanting the change and will be very skeptical of any change
to avoid discipline in a more strict parent's home.
If both parents split parenting
responsibilities, can one avoid paying child support?
No. The only way child support might be
ordered if the child resides at each parents an equal amount of time. The
primary residential parent will receive child support from the noncustodial
If my ex-spouse refuses to make
children available for visitation, do I have to pay child support?
Yes. Child support is not contingent
upon seeing your children. To enforce the visitation and parenting rights begin
with a petition or mediation.