Founding Attorney, Lewis Landerholm, explains what a parenting plan is, and why it's important to have a long-term mindset when creating one with your co-parent. Lewis and Steve discuss the following:
• How a parenting plan differs from a visitation schedule.
• Are parenting plans required and who creates them?
• Things to include in a well thought out, workable parenting plan.
• Who makes major decisions about the child RE: school, religion or where they live?
• How day-to-day decisions about the children are handled.
• How make-up and missed parenting time will be handled.
• How information concerning the children is shared and how to communicate.
• Can you change a parenting plan?
• What to do if a parent is not complying with the parenting plan.
If you would like to speak with one of our family law attorneys, please call our office at (503) 227-0200 or visit our website at https://www.landerholmlaw.com/
Disclaimer: Nothing in this communication is intended to provide legal advice nor does it constitute a client-attorney relationship, therefore you should not interpret the contents as such.
Welcome to Modern Family Matters, a podcast devoted to exploring family law topics that matter most to you. Covering a wide range of legal, personal, and family law matters, with expert analysis from skilled attorneys and professional guests, we hope that our podcast provides answers, clarity, and guidance towards a better tomorrow for you and your family. Here's your host, Steve Altishin.
Steve Altishin 0:32
Morning! My name is Steve Altishin, I'm the Director of Client Partnerships here at Landerholm Family Law, and today, I'm here with our Founding Partner, Lewis Landerholm. Hey, Lewis, how you doing?
Lewis Landerholm 0:43
I'm doing well. How are you doing?
Steve Altishin 0:45
I'm doing well. So today, we're going to talk about parenting plans, what they are, what they do, and why they're important to get right. So let's just start right at the basics. What is a parenting plan?
Lewis Landerholm 1:02
So a parenting plan in Oregon is the actual plan that dictates how parents are going to operate on a day to day basis post a custodial filing, or a divorce filing, when kids are involved. The term "custody" in Oregon refers to decision making, like major medical, school decisions, and some religious decisions. But the parenting plan is everything else; you know, who's going to have them on what days, on what evenings, who gets to take them to certain sports or certain activities, and who gets to make those decisions. So it's really, to me, it's the meat and potatoes, and it's the most important part of a judgement and of a custodial matter. But sometimes it doesn't come across as being the most important piece. But in reality, most people end up needing to spend more time on their parenting plan than they do on who gets custody.
Steve Altishin 2:04
Well, that makes sense. So you mentioned about them going into the judgment, the divorce decree. Are parenting plans required in every case? I mean, do you have to have a parenting plan if you're getting a divorce, or if there's custody involved?
Lewis Landerholm 2:20
So it depends on the judge, and it depends on the county. In 99% of cases, you're going to have to have a parenting plan. There are some rare circumstances. I mean, it could be as vague as the parents have agreed to just work out and negotiate what the schedule is going to look like. With older teenagers, you may be able to get away without a parenting plan. But in 99.9% of cases, you're going to need a parenting plan for the judge to sign off on the judgment.
Steve Altishin 2:50
Got it. So before we get into some details of what kind of things can go into a parenting plan, let's back up a second, because you had talked a little bit about custody and it made me think: what's not in a parenting plan? You know, there's a lot of stuff that goes into a decree, but what's not some of the things you put into a parenting plan? I mean, does support go in there?
Lewis Landerholm 3:15
No, your child support is a separate section of a judgment. So your child support would be there, how all of your debts and assets are divided are in different areas of your judgment, the custody determination is separate. The Parenting Plan is really everything from the schedule, also how you're going to handle any differences, or if there's any sort of decision making that needs to happen from the joint custody, like from a mediation standpoint, or from a day to day standpoint. Even, you know, as detailed as who can approve a haircut. It can get very detailed, very intricate, but it's really just the kids and the day to day operation of how the parents are going to manage that between the two of them and co-parent.
Steve Altishin 4:06
Yeah, that kind of leads to a question then. It sounds obvious, but I don't know that it is. Who creates the parenting plan? I mean, how does this thing come into existence?
Lewis Landerholm 4:19
So ideally, the parents get together and they negotiate. Then they, either with their attorneys or on their own, come up with an agreement, or a mediator. They come up with an agreement as to how they're going to exchange the children, what the schedule is going to look like. But ultimately, if the parties can't decide, then it would go to a judge, and a judge would order the parenting plan and order the schedule. And, you know, with most clients for us, we really work hard to to help them create the parenting plan. That way they have control over it, rather than giving it to a judge who has a few hours, or a few days even, to hear testimony. But still, the judge doesn't really know the whole story and what's best for the family. So if you can, you can keep that to yourselves and be able to work with your soon to be ex spouse. You know, in my opinion, that's best for everybody. And it's not going to be easy always, but trying to come up with the schedule and the details, you know that better than a judge would. So, anyway, if you can negotiate that, I highly recommend it.
Steve Altishin 5:35
That sounds brilliant. I mean, that sounds like the way you would try to do it, kind of circling back a little bit to the importance of a parenting plan. And I know you kind of talked about how it sort of is the document, the cornerstone, of how parents are going to relate going on. It seems like there's a lot of family, and not just for the parents but for the kids, there are a lot of good reasons to have a parenting plan that's well thought out and doesn't have to be fought over all the time.
Lewis Landerholm 6:06
Yeah, if you can avoid going to court and feeling like you have to rush to court over and over and over again, that's better for everybody. You know, for some families, a flexible parenting plan where you're able to co-parent, and you can figure it out, that works well. And that's great. But a lot of people, you know, they're split up for a reason, and you're not a couple for a specific reason. And a lot of that is because you can't get along. And so you want to build in specific clauses, so that you don't have to constantly fight about: what time are the kids coming over? Am I getting them this weekend? What happens if they're sick? What happens if there's a day off of school? What happens if, you know, we split up when the kids were young and before school, and then school comes into play, and now there's a whole other set of rules, or one parent moves away from the other parent? All of these things impact parenting plans, and those things are pieces that we see all the time, and we work with clients on all the time. And so what we try to do when we're working with clients is we try to look into the future as far as we can. We're going to try to help and advise on perceived problems on parenting plans, where there's going to be an issue, and then try to plan for that issue. School is a big one. When you go from young children to a school plan, that just dictates how things are going to go, you know? Who are they going to be going to school mainly with? And on the weekends, what happens then? And on teacher in service days, and then in the summertime, how's that going to work? How are camps going to work, and vacations? All of these things get built into a parenting plan. And, you know, my opinion is that the "one size fits all" plans that are out there, they just don't work. Because all of these things are things that are going to be original and unique to your family. And so you need to think through these, ask the questions, and make sure that you've got a well thought out plan so that you know how the rules are going to work and how you're supposed to co-parent together.
Steve Altishin 8:29
That makes sense. And different people have different work schedules, like you said, kind of live in different areas. Can parenting plans, then, deal with even more specific or more unique or more urgent kinds of cases? I mean, can you have your parenting plan include, let's say, issues where there's safety concerns? One of the parents maybe is abusive even, or something like that, or a special needs kid, or you're living 200 miles apart, right? Can parenting plans handle all these other, different situations?
Lewis Landerholm 9:15
Sure, and we build those plans all the time. I can say that those types of plans are more difficult for parents to figure out on their own just because they don't know what the options are. Substance abuse is a huge one. You know, how do you plan around the substance abuse disease so that you can allow the parent to have time, but you're taking into consideration the safety concern of the kids? Young nonverbal kids are going to have larger safety concerns than older kids who can self report, and who have cell phones, and who can call and make sure that they're safe on their own. So every age is different. If we need to get professionals involved, we get our custody evaluators involved, and then they'll also make parenting time recommendations. So those are reserved for the more either high conflict case, or the more difficult case. Special needs is a reason that sometimes we need a psychologist to get involved to say what's best for the child, because the standard for parenting plans is what's in the best interest of the child. But sometimes that's not as easy as it sounds, especially with a move away case. Move aways are hard in general. If the parent is going to try to take the kids a farther distance away from the other parent, those are not easy cases because you still have to prove it's in the best interest of the child and not in the best interest of the parent themselves. So all of those issues, definitely, we help a lot of clients with those because they are so difficult, and there are so many moving parts. It's hard to navigate that on your own.
Steve Altishin 11:06
Coming back to the scheduling, you talked about it a little bit. In terms of who makes some of the decisions, it sounds like you were talking about how parenting plans can deal with that. But could you just give us a little sort of overall picture of, having not maybe put in very specific things, what sorts of decisions can be made by the parents, depending on where the kid is residing at the time? If the kids with the non custodial parent, what kind of decisions, in general, does that parent get to make about the child?
Lewis Landerholm 11:50
So it gets more in the custody law than it does into parenting plan law. But typically, and this can be modified based on the parenting plan, or based on the custodial agreement, but typically with like emergency situations, if you're the non custodial parent, you can engage emergency help. As far as other decisions, most are made by the custodial parents that are big decisions. Your parenting plan doesn't have-- I mentioned earlier, like getting a haircut--now, most parenting plans don't have those provisions in there. But you know, it's something that the parents figure out, they work together. But if there are issues, sometimes they need to be built into a parenting plan. A lot of times, people will either get divorced or go through a custody matter, and they've never had to operate separately. And so you don't really know where the problems are going to be until you have experience. So you're trying to plan for some of those, but then inevitably, sometimes changes occur. And that will either require a modification later, once you have specific pieces that aren't working, and that modification can either be through agreement, or through the courts.
Steve Altishin 13:09
So looking at how situations change, you were talking about over time. You said the parenting plans can deal with that. Are you're talking about something like, between the ages of five and 12, or whatever, this will be the schedule for school, and then at another age, a different schedule will kick in? Is that how it's done? Or is it more like, we agree to form something else at a later time? Or can you do either one of those types of things?
Lewis Landerholm 13:47
You can do either one. A lot of times what we see is what we call "stepped up plans", or a "tiered plan", where you'll start with pre-k kids, who maybe their needs are differen,t and they're in home base for a longer period of time. And then you're transitioning to say, a week on week off plan, once the kids are in school and say around six, or seven or eight. Now, there's psychologists who have done a lot more work on these developmental stages than I have or that I've obviously read, but we listened and we talked to a number of psychologists and child's therapists who--you know, these are general recommendations where, at the younger stages for the kids, they're going to have one home base, and then that's going to transition as they grow and as they develop into having more equal time between the parents. Some plans go directly to week on week off, or a 50/50 type of plan. There's multiples, it's like a 3443, where you split the week for younger kids, but then when they get to be older, they don't like that midweek transition. So then, typically, a lot of parents will transition to a week on week off. So there are some benchmarks that are sort of typical that we see. But there are guidelines for parents. That doesn't mean that that's right for your family. For some families, a week on or every other weekend plan is just fine, and that's what everybody wants, because it's best for the kids, and it's best for the parents. But there are some transition periods, like school is a good one, pre-teen, and then you get to be a late teenagers, and, you know, parenting plans are hard to apply at that age anyway. So they're sort of thrown out the window, to a certain extent, when they get to be older, since they can vote with their feet or their car. And so it gets to be much more difficult at the late teenager stage, anyway.
Steve Altishin 15:56
There's a lot of stuff you can do, obviously, with the time frame, the "when's" and all that stuff. But do parenting plans touch on the where, and the how exchanges happen? I know that a lot of this stuff breaks down in terms of who picks up or drops off, and where it's all done. Does that get into a parenting plan?
Lewis Landerholm 16:22
Yeah, all of that can be in a parenting plan, it typically is. A typical plan just says pick up and drop off at the parents house. The parent dropping off normally is the one who is going to take the kids for their time, but that's not always the case, sometimes the person is getting time. But thinking about travel time, thinking about the times when that's happening, is important. Sometimes we give like off week visits, especially as a transitionary time when everybody's getting used to it. So sometimes the other parent who has less time will have a midweek visit with the kids. So all of that can get worked out as far as what that time it looks like, and being conscientious about how much time, and building that so that it makes sense and the parent gets good, positive time with the kids, and not just sitting in a car. So, yeah, those are the things that we think about when we're thinking of timing, and traffic, and who's doing the exchange. But typically, there will be some sort of exchange language, normally it's at the house, sometimes it's halfway in between. Sometimes, for domestic violence type situations, it can be at a police station, it can be at a fire station. So there are a lot of different options.
Steve Altishin 17:50
So they can handle a lot of situations. Do parenting plans talk about missed visitations, or makeup visitations, or times when when someone is delayed? Because I know those can be points of contention. Can a parenting plan deal with those kinds of issues?
Lewis Landerholm 18:11
It can if the parties want them to, or they can be silent as well to all of that. So the default would be no makeup. The default would be that you still get your time. A lot of times, because we see that's where a lot of fights are later, it's when parents don't have the specificity in those areas that it becomes a point of contention and an area for modifications a lot. Which is, do I get makeup time? And what does 'late' mean? So a lot of times, it can be 30 minutes late, and it's all reasonableness. But unfortunately, not everybody can be reasonable. So sometimes you do have to have very specific language in there about what that looks like. So, yes, it can deal with it if it needs to, but it doesn't have to. The other piece that I think is something that a lot of parents hear about is called "right of first refusal". So if you're the parent and you are going out of-- not even out of town, but say you're going out for an evening or for an overnight--do you have to call the other parent to say, 'do you want to take the kids or watch the kids while I go out before I call family or before I call a babysitter'? I personally try to avoid rights of first refusal if I can for my clients. I specifically advise them that if there's more fights over the right of first refusal, then it helps to solve. I think there's value with small kids and overnights, that makes sense. As the kids get older, they need to go to grandparents for a night, or they've got friends, or they've got whatever, it becomes less and less important. But it becomes a really big point where one parent kind of looking over the other parents shoulder and just causing more problems than it's worth most of the time. And that's a generalization, but we've seen so many fights over it, that I try to advise against them, except for in limited circumstances.
Steve Altishin 20:26
And it seems like if you get that into the parenting plan, you're going to avoid fights later.
Lewis Landerholm 20:32
Yeah, I mean, you can, or it causes fights later. So the right to first refusal can cause some fights. But I mean, with anything, again, I just really, truly believe there's no one size fits all. So what I explain to potential clients and clients is that, as a parent, you're going online, you're talking to your friends who have gone through this situation so you can gather three or four pieces of information in order to make these decisions. So one of your friends may have a right of first refusal, and you're like, I want that. Well, what the advantage of, or what we do as attorneys, is that we've helped 1,000s of clients. And so we can extrapolate from all of their cases, and help you to understand the pros and the cons of all of these different types of clauses and options so that you can build a plan that actually works for you, and I mean, nothing's ever perfect, but with at least the framework, so that it avoid fights. And it can save 1,000's of dollars later by just doing it the right way at the beginning.
Steve Altishin 21:42
Oh yeah. That kind of dovetails into, do parenting plans get into communication issues? How parents communicate with each other about the kids, or information that they share. Does that kind of go into a parenting plan or does that fall somewhere else?
Lewis Landerholm 21:59
Well, there are typically some sort of clauses that are always in parenting plans that deal with comments, like neither parent is supposed to disparage the other parent or not to have a new spouse or new partner be called Mom or Dad, depending on gender. So, yes, it can go in there. You know, like with anything, enforceability is always the difficult part. Because you're relying on information that's maybe coming from child, which, I mean, it's difficult to always know if that's accurate. And judges have a hard time with that. So since it's hearsay, when they get into court anyway, you can't say, 'My child said this, or that', and there's no other real witnesses. So yes, it can, but the problem with trying to hang your hat on that is that enforceability becomes difficult. And it really has to be extreme for a judge to really take notice and do something about it.
Steve Altishin 23:07
That kind of leads into the best laid plans kind of scenario. Before we get into total modification, let's say there's some temporary changes that you want to make, or you and your spouse want to make. And they come to us and say, 'How can we make this temporary change for this summer? I want to do this'. They come to you and say, 'How do I change that? What should I do?' Is that something that can be done?
Lewis Landerholm 23:33
Yeah, if both parents agree, then it's not required to be in writing to make the change, it can be a verbal agreement to modify the plan for a summer or for a weekend. You don't have to rush to court every time, plus, rushing to court takes eight to 10 months to a year. So, you know, there's no rushing to court. And these are some of the things we help potential clients understand in consultations--what the process actually looks like, so that everybody understands what they're getting into when they go down the path of a modification. But 90, you know, 99% of the time, something needs to be adapted to the plan. And it's my opinion, a lot of people's opinion, that parents should make all of those changes. And those are all verbal changes. What parents have to realize, though, is that the only enforceable plan is the one signed by the judge. So, if you go on, and we've had this situation a million times where, it's modified to say, let's say it started as every other weekend and it was modified up to one week on week off. Then one parent gets upset at the other parent for whatever reason, and they want to take it back to the every-other weekend plan. That's something that, maybe it was over the course of five years as they were operating and everything was going on well, but then, you know, things, for some reason, turned kind of ugly, and so then the other parent's trying to go back to the only enforceable plan. And in that instance, there is something that we can do-- we can file a modification, it's called a post judgment status quo. Where then, within about a month you get in front of a judge, and you explain what was happening at the time of the filing, and the judge can reset it back to what it was at that time. It doesn't automatically go to that. But if parents act quickly enough, then you can ask the judge to lock in what you have been doing for that amount of time. So changes are good, the big changes should be reduced to writing. Just modify your parenting plan with the courts, just so you don't have to go through the headache of buying yourself another case in the courts.
Steve Altishin 25:49
So if parents modify a plan, even maybe make a permanent change, and they do it in writing, and they come to you, I take it that you can then send that in, and an order says, 'Okay, this modification is allowed'. That can happen without having to go to court.
Lewis Landerholm 26:13
Yeah, it's called the supplemental judgment. And so then all of the required documents are required, but we would put all of that into the new plan, and get that signed by both the parties and that gets entered by the judge. And that becomes the new enforceable plan. So that's the document that comes out of either an agreed upon change, or a court ordered change. So that supplements the original judgment, changes those terms, and then you move forward operating on those specific new terms.
Steve Altishin 26:46
Got it. So making changes can be good, but not necessarily relied upon if they're an important change, without going to court and actually having a new plan done.
Lewis Landerholm 26:58
Yeah, it's the downside of trusting that it can happen for forever. But it's important to be able to make changes on the fly. So it's kind of it's a catch 22 a lot of times, but yes.
Steve Altishin 27:13
That's the kind of stuff you've seen a lot, and you can help people with-- you know, this may be a better situation, or that may be a better situation for doing specific things. Which gets to, how are disputes resolved at the end of the day? You were talking about, you can modify, you can change it. What's the process of getting that done?
Lewis Landerholm 27:37
So it's similar with the original filing. In your original case, you're going through the court system, and if you can't decide then a judge is going to order it. It's the same with the modification. You're filing to modify the parenting plan, you're going to go to mediation, I believe all of the counties require mediation in parenting plan modifications. And then if you can agree, you change the parenting plan. If not, then a judge would decide just on the parenting plan, if that's all you're asking to modify. And again, that's in the best interest of the kids. And so you're gonna be talking about what works for them and what doesn't work and working towards that modified judgment.
Steve Altishin 28:25
So that then goes to, how can you force your ex spouse to comply? I mean, what happens if they just don't comply? And what can you do?
Lewis Landerholm 28:37
So, yeah, there are, they're not perfect remedies, but there are remedies built into Oregon statutes. There's enforcement, where you're asking a judge to enforce the plan. And then, in some instances, you can get into contempt. Contempt is typically not used for just straight compliance issues on a parenting plan. Normally, we would use an enforcement action, but that's something that we help potential clients think through during the consultation and the initial stages of the case to determine what's the most appropriate action to bring for parenting plan compliance problems.
Steve Altishin 29:19
One last thought. Someone may come in and say-- because this is going to be a fair amount of work at the at the front end; etting a parenting plan, getting one that you can agree to getting, set it up and get on the record-- so what about someone saying, 'Why go to all this work to negotiate a parenting plan? Why don't we just sort of put in something and then worry about it later?' How do you respond to that?
Lewis Landerholm 29:53
Yeah, I mean, I think every situation is different. Sometimes it works, but I think the downside of not having something written down outweighs this kind of figuring it out. Just because you've got kids involved, you've got two parents involved, you've got multiple lives that are constantly changing, and you're trying to figure out. So getting something at least in the court so that it is consistent with what your original plan is, regardless of what that plan is. At least there's some safety on both sides if the other side is going to withhold from the other parent. Because that's where things blow up, where you have parents who are trying to operate on their own accord, but then one parent does something, and then another parent, you know, they retaliate by withholding the kids or trying to move or what have you. So there are a lot of reasons to just have something written down in writing that's enforceable by a judge. So that way, you protect your rights, and you protect what you understand the parenting plan to be, and then you can work from there. But, you know, it just becomes a situation where it's a lot easier when everybody's in agreement to put something in writing. Because when it blows up that way, it's going to be a lot more expensive, it's going to take a lot longer. And you're just going to be fighting all along the way to get back to where it once was.
Steve Altishin 31:25
So someone is listening to us today, and they're looking at their parenting plan and say, 'I have questions about it, you said a lot of things, and I'm not sure that mine is really the way I want it to be right now'. What should they do?
Lewis Landerholm 31:41
Well, we provide consultations all the time for potential clients looking at parenting plans and understanding what the change is, and to make a recommendation whether a modification is the right course of action. And so we we offer those consultations all the time. So that would be the first step. You know, attorneys who are practicing Family Law, we see modifications, and we see parenting plans all the time. And so that allows us to give the information from a standpoint of, 'In this county, judges do it this way. And in this county, judges do it a different way'. We've got offices through a lot of Oregon counties. And so we're able to give that guidance as far as, is this worth bringing in a modification? Or, do you just go to mediation and try to work this out or through negotiation? So we try to advise clients, in that respect.
Steve Altishin 32:39
This is one of those things that it's simple, but it's not simple. There are a lot of things that you really need to know and specific things you have to do. So, you know, thanks again, as always, for joining us today and giving us insight into really how important parenting plans are, and why you need to be aware of them and take care of them if you have to. Thanks again for coming.
Lewis Landerholm 33:06
Yeah, you're welcome. Always, always happy to join and jump on a Facebook Live and talk to you, Steve. And I think the last thing I would say is that, you know, a lot of people get caught up on the term 'custody'. And while custody is important, just to kind of go back on what I talked about before, the parenting plan is what you what you live with 365 days a year. Custody comes up maybe a couple of times in a kid's life. So I would definitely get more information on the parenting plan. Reach out, find as many resources that you can, so that you can make informed decisions.
Steve Altishin 33:47
That sounds right. Thank you again, thank you so much. And I want to thank everyone else who has joined us today and tuned into our Facebook Live. If nyone has any questions as always on today's topic, you can post it, you can shoot us an email. I'm [email protected] You can call and set up a consultation. We do this a lot. We're experts, and like Lewis said, we are all over the state. So feel free. And again, until next time, everyone, stay safe. Stay healthy. Have a great day. See you next time.
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