In his open letter dated March 24, 2020, Chief Justice Casey indicated that it is important, during the current Covid-19 crisis and corresponding Stay-at-Home Advisory, for children to spend time with both of their parents. While this provided welcome clarity for upcoming parenting exchanges, it also created an opportunity - especially for parties operating under a parenting schedule by way of a temporary order and in the midst of contested litigation concerning custody issues - to put contested litigation issues aside and create a parenting arrangement (perhaps even a temporary, equal parenting) that more effectively deals with the reality of school/child-care closures and the requirements of working remotely (for both parents and students).
In negotiating parenting plans for nearly 20 years, I have gradually eliminated a few different words from my vocabulary. For example, it's been a long time since I've used the words "visit" or "visitation" to describe what a non-custodial parent does when he or she is with his or her children - regardless of whether it's related to a Wednesday night dinner, a full weekend of overnights from Friday pick-up to Sunday night drop-off, or an extended period of vacation.
Two renowned psychologists who work with children in the context of divorce and separation, Daniel B. Pickar, PhD, ABPP and Robert L. Kaufman, PhD, ABPP, presented a seminar at the 50th Anniversary Conference of the Association of Family and Conciliation Courts in Los Angeles entitled "Parenting Plan Considerations for Special Needs Children."
One of the main issues facing divorcing and separating parents is to establish a parenting plan when each party provides care and custody for his or her children. There are a number of different parenting plans that can be negotiated or ordered. Under any such plan, the challenge is for one parent to respect the parenting time of the other parent. Often, one parent wants what is called a "right of first refusal." This is when the parent who is not scheduled to have the children is under a contractual right to receive notice from the parent who has the children, but is unable to parent during any specific period of scheduled parenting time. Under those particular circumstances, the parent who is scheduled to be with the children must notify the other parent that he or she is unable to parent for one reason or another and offer the other parent the opportunity to have additional parenting time. This would be in lieu of asking a babysitter, family member or friend to step in and provide childcare during those periods.
When parents of minor children separate, and have to establish appropriate parenting plans and make joint legal custodial decisions that are in their children's best interests, it is helpful to engage the services of mental health professionals, who can serve as parenting coaches. Parenting coaches can be engaged prior to, during, or after separation and divorce. Clients who have engaged parenting coaches often have a much easier time navigating through difficult child-related issues that come up in the context of separation and divorce.
In a recent custody case we litigated in the Massachusetts Probate and Family Court, a case in which the parties' minor child is a smart, articulate, athletic and very talented 11-year-old boy, an excellent resource published by the Association of Family and Conciliation Courts ("AFCC") called "Planning for Shared Parenting: A guide for Parents Living Apart" became a vital guide for the parties in formulating an effective parenting plan that both parties agreed is in their pre-teen's best interests. Formulating pre-teen parenting plans can be quite challenging. This particular AFCC guide articulates a number of important issues that the parties to a custody case should consider. Probate and Family Court judges often refer to the resource, so it is also something that should be considered in anticipating a possible judgment after a full-blown trial. This advance knowledge certainly helps settle cases, and in turn, reduces the overall cost of litigation.
Studies indicate that parents who make disparaging comments about each other, engage in verbal altercations in the presence of their children, place the children in the middle of parental disputes, encourage protective behavior by the children in favor of one parent who may be seeking to alienate the children against the other parent, and who engage in other types of behavior that repeatedly expose their children to interpersonal, parental conflict may be causing significant adjustment problems for their children.
Often we hear about the best interests legal standard that Judges in the Probate and Family Courts apply to make important decisions affecting the lives of minor children. Custody determinations and appropriate parenting plans are based on this guiding principle. Contrary to common belief, the "best interests" standard is gender-blind. M.G.L. Chapter 208, Section 31 provides that in determining the question of custody "the rights of the parents shall . . . be held to be equal." In deciding issues involving custody, the overriding concern of the Probate and Family Court Justice assigned to the case must be the promotion of the best interests of the children and their general welfare, not the gender, feelings or wishes of a particular parent.
I recently attended the 49th Annual Conference of the Association of Family and Conciliation Courts in Chicago. The conference was entitled Attachment, Brain Science and Children of Divorce: The ABCDs of Child Development for Family Law. In addition to seminars focused on the role of Parenting Coordinators in resolving disputes between parents in high-conflict custody cases, there were presentations on attachment theory, and how developments in social science help us formulate appropriate parenting plans, especially in cases involving infants and toddlers.