Sunday, September 22, 2013

Rights and Duties are not Prizes

Parenting Plan - 3 Major Components

When parents divorce, their final decree contains a parenting plan. If the parents were never married, then the court will order a parenting plan along with the child support order. A parenting plan contains three major components:
  1. Conservatorship Provisions
  2. Possession and Access Schedule
  3. Child Support Provisions
The conservatorship provisions allocates rights and duties between the parents so that it is (for the most part) quite clear as to who has the right to make decisions on behalf of the children.

Rights and Duties 

Most of the time, parents are appointed Joint Managing Conservators of their children. That means that both parents have the rights to make certain decisions for the children. There are eleven rights and duties we tend to argue about the most, and foremost among them are:

  • The right to determine where the children live;
  • The right to consent to medical treatment for the children;
  • The right to consent to mental healthcare treatment for the children; and
  • The right to receive child support for the benefit of the children.
There are others, but battles over these rights consume the most energy.

Decision making rights can be held in three ways. First the parents can hold a right independently. That means both parents have the independent right to make decisions that fall within the scope of a particular right and neither needs to notify the other parent or get the consent of the other parent before making a decision. Secondly, the parents can hold a right jointly, meaning that both parents must agree before a decision is made on an issue within the scope of that right. Finally, one parent can hold a right exclusively meaning the other parent has no right to make a decision within the scope of that right.

Independent Rights

More concretely, if the parents each have the independent right to make educational decisions, then either parent can speak to the school counselor and make decisions regarding the child's academic program. Highly functioning co-parents can share an independent right without causing problems for the child.

Joint Rights

If the parents each have the joint right to make educational decisions, then neither can make a decision regarding the child's academic program without the consent of the other parent. If you have a parent who wants to use his or her rights as an excuse to say "no" to everything, then joint rights can create problems for the child.

"Sneaking" behind the other's back back to make certain decisions without notifying the other parent can cause insufferable conflict in the co-parenting relationship. For example, if the parents each have the independent right to consent to psychological treatment for the child, one parent could take the child to see a counselor without telling other parent without being in violation of the parenting plan. When the other parent finds out, he or she may be alarmed or angry to the point of suing the parent for taking the child to a counselor. The normal dance is for one of the parents to demand to have the EXCLUSIVE right to make decisions in that category, in this case the exclusive right to consent to psychological treatment.

However, I think this just sets the parents up for MORE conflict, not less. If the child really needed counseling, then there may not have been anything wrong with getting the child some help. The harm is in creating a situation of alarm for other parent. In that case, who should get the exclusive right? The parent who sought help but created a lawsuit or the parent who did not seek help but was understandably startled by the other parent's clandestine maneuvers? The typical approach is for the court to pick one or the other. In cases like that, my opinion is that the court should more often reallocate the right as a JOINT right in order to force the parents to work together on that issue. If the parents cannot work together, THEN the court should designate one of the two parents as having the EXCLUSIVE right to make decisions.

Principals of Allocation

Phrases like "battles over these rights" are symptomatic of the  unhealthy and unhelpful way that parents can view the allocation of rights. Too often, attorneys act as enablers in these battles or, worse, sometimes attorneys point out the opportunity to do battle.

The Texas Family Code tells us that both parents should be appointed as joint managing conservators for the child unless another arrangement is clearly in the child's best interest. That suggests that parents should, for the most part, have independent rights and duties, just as they did prior to the lawsuit (divorce or suit affecting the parent-child relationship) being decided.

Within that framework, rights and duties should be allocated between the parents on the basis of what is in the child's best interest. Everyone gives lip service to that "best interest of the child" standard, but not that many people think deeply about what that means. I believe that it is clearly in the child's best interest to have two involved parents making decisions together for the benefit of the child. The unfortunate truth is that too often, attorneys and parents seek to "collect" exclusive rights as badges of honor. The more exclusive rights and duties you have, the better parent you must be. How in the world is that a helpful, healthy way to view decision-making responsibilities?

Of course all cases have their differences, but here is my general model for allocation of rights and duties.

1. The right to receive child support has to be exclusive to one parent. There are situations where an argument can be made to have that right held independently, but that argument is just an attempt to set up one parent or the other for a future contempt finding.

2. The right to determine the primary residence of the child must be exclusive to one parent if the parents cannot agree on a geographic restriction on the child's primary residence. If the parents can agree, for example, that the child's primary residence shall be within Collin County, Texas, then neither parent has to hold this right. But if the parents cannot agree, one parent must have the exclusive right. NOTE: If the parents agree to a geographic restriction and agree that neither parent will have the exclusive right to designate the primary residence of the children, then they must set up some rules for the selection of the child's school.

3. The right to consent to underage enlistment and marriage should be joint because young kids should not be joining the military or getting married. They'll be old enough to make those decisions on their own soon enough.

4. All other rights should be held independently unless and until a conflict over a particular right emerges.

5. If the conflict is such that the parents are making mutually exclusive decisions, then the court will have to modify how that right is held. For example, if the child has asthma and one parent takes the child to a pediatric pulmonologist but the other takes the child to an herbalist, without suggesting which parent is following the better approach, it is clear that the two treatment theories are in conflict and the conflict could endanger the safety of the child. In a case like this, the court should designate one of the two parents as having the EXCLUSIVE right to consent to medical treatment.

6. However, as is more often the case, if the conflict is over one or the other parent sneaking off and making otherwise good decisions without notifying the other parent, then the court should order that the implicated right be held JOINTLY by the parents. For example, if the child needs counseling and one parent takes the child to a counselor without telling the other parent, it is clear that the conflict is not over the substance of the treatment sought. The parents agree the child needs a counselor. The conflict is over the parents not cooperating.

Aspire to a Higher Standard

Situation #6, above, is where the courts, attorneys, and mental health professionals routinely make bad decisions. In a case like that, the attorney for one parent is likely to sue for the EXCLUSIVE right to make mental healthcare decisions, the attorney for the other parent is likely to join the fight on those terms, mental health professionals will be lined up as enablers, and the court will be asked to pick a parent after thousands of dollars in legal and professional fees are expended by both sides. Each parent is trying to collect this particular right as his or hers exclusively as evidence that he or she is the better parent. This is the more common approach and essentially places the raising of children in the hands of attorneys and judges. That's a framework that is beneath us all--we can do much better.

If the problem is that the parents are not sufficiently engaged with each other, the solution is to push them closer together, not pull them farther apart. Rather than give either parent the exclusive right to make mental healthcare decisions in this example, I believe the court should order that neither parent can make a mental healthcare decision for the child without the consent of the other parent. In that same order, the court may need to appoint a parenting facilitator or parenting coordinator with the binding authority to make decisions when the parents cannot agree. This approach keeps parenting with the parents and their appointed helper.

By giving one parent the exclusive right, the court almost guarantees future litigation over the issue and certainly sets the parents up for future conflict. However, instead of seeing the allocation of rights and duties as a score card, the parents, attorneys, mental healthcare professionals, and the court should view it as a part of a decision-making framework that gives the child the benefit of two involved parents. Seen in this way, it becomes more intuitive that the court should nudge the parents closer together in that decision-making realm, designate the right as a JOINT right, and see if that clears up the conflict.

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