Co-Parenting in the Tennessee Parenting Plan Environment By: Nicholas W. Utter, Esq.

          I have been involved in divorce and child custody litigation for almost thirteen years. Two of those years were spent serving a domestic Judge, in a domestic court, and the remainder as a lawyer.  I have seen and heard a lot in that time.  The court experience for most is generally an unpleasant one, and the aftermath can lead to a great deal of resentment.  Parents resent the other for things that occurred during the litigation, and even a child might harbor resentment towards one or both parents.  While individual counseling is certainly helpful in addressing these issues, there are some common themes to complaints I receive from individuals, post litigation.  Most do not rise to the level of justifying post judgment modifications and other actions.  However, persistent problems that are minor in nature, can build up over time.  These minor problems can influence later larger ones.  Further, a series of minor issues can pile upon enough that it will lead to later litigation.  At the end of the day, it is best for the parties and their offspring, to avoid minor skirmishes and do what is best for the children in the post divorce/custody environment.  Regardless of the status of your relationship with the other party, you chose them to be the father or mother of your child.  Regardless of what one may think later about one’s choice, it is pretty much a permanent one.  Just try and make the best of it.  To that end, I share a handful of my ‘pearls of wisdom.’

  1.  The Parenting Plan controls everything.  If the Plan provides for something, unless both parties agree to do something different, the Plan dictates (except that child support cannot be waived).  A Parenting Plan is literally a court order, providing for how parenting is to occur and when.  It is enforceable in Court via the Court’s Contempt powers.  One can go to jail for violating it.  The support provisions are mandatory, the co-pays on medicals are mandatory, the visitation schedule is mandatory, the restraining orders (if included), are mandatory, the decision making process is mandatory.  Do not make the mistake of thinking either of you have discretion to not do something that is required. Remember that persistent non-compliance with a Parenting Plan can constitute grounds for a modification of the Plan, or a change in custody.
  2. Being designated Primary Residential Parent does not confer some special authority that allows one to henpeck the other party about their parenting.  The status merely refers to the parent that has the majority of time with a child. It does not establish that parent as a “quasi judge.”  There are some things that come with being primary, such as income tax deductions for the children. There may be language in the parenting plan that gives the Primary Parent preference on joint decision making.  But being designated primary does not confer special judicial powers to call the shots.  I see this most commonly in situations where the Primary Residential Parent attempts to dictate how the other parent exercises their time, often  by threats to withhold the child from visiting the other parent—which can result in a contempt petition being filed against the Primary Residential Parent.  Further, one parent henpecking the other about their parenting, or how they spend their parenting time, is a recipe for a very bad post litigation relationship.
  3. If both parties agree to modify something regarding the parenting plan temporarily, then confirm it in writing.  An email or letter works best, but at a minimum via text.  Save the test or writing.  This ensures that everyone agrees, and there is no argument about what the agreement is.  It also allows one to produce the agreement later, in court, if necessary.  If permanent changes are desired or needed, it is best to do so via modification of the Parenting Plan itself, for which, one should consult their lawyer.
  4. Do not rescind an agreement to modify something in the parenting plan, at the last minute, unless it is an emergency situation. In my experience, the withdrawal of consent is often done out of spite, and over something that occurred following the agreement.  Technically, the withdrawal of consent can be effective to withdraw consent at the last minute.  But if one uses this approach to punish the other parent, the action can be taken into consideration during later legal proceedings. Consider that basically, by doing so, the child is being used as a pawn, and essentially punishes the child as well.   This conduct also works against the obligation of the custodial parent to “foster a relationship with the non-custodial parent.”
  5. Do not interrogate your child or children about what they do during the other parent’s time.  That time belongs to the other parent. Respect that.  Children have a tendency to talk about things that bother them, and will exhibit marked changes in behavior if they are being subjected to abuse.  In those cases, it is advisable to get them to a licensed professional who has training in deciphering these behaviors, and dealing with them.  Unless a substantial threat exists to the health, safety and/or welfare of the child, the other parent is free to exercise their time however they see fit.  When such a threat does exist, then a consultation with a lawyer is necessary. Otherwise, see Number 2 above.
  6. Do not interrogate the other parent about what they do with the children during their parenting time.  If you maintain a descent relationship, then perhaps you will know about what they do via pictures, social media, relatives, text messages, conversation and the like.  If one does not have a good relationship, then accept that you are not going to know every detail about what goes on when the other parent has parenting time.  Again, children will talk about the things they did that they enjoyed, or disliked, without the need for interrogation. If one parent has specific concerns about what is going on, a lawyer will be able to assist with determining whether or not further investigation is warranted. Otherwise, see number 2 above.
  7. False accusations of sexual abuse.  These occur more commonly than one might think, and is a slippery slope.  A false allegation against another parent, in Tennessee, can be grounds for a change of custody entirely.  This means that one parent can lose custody of their child or children, because they made a false allegation of sexual abuse against the other parent.  That is a severe punishment.  This must be balanced against the nature and justification giving rise to the concern.  Consider that the law requires any person having knowledge of abuse to report that abuse. The concern here involves false allegations. Those known to be untrue, or those about which there exists little to no factual basis for.  Should a parent have any concern regarding such an issue, one should consult their lawyer.  A lawyer will assist a parent in determining whether or not the concern is justified, and how to handle it.
  8. Pay all financial obligations required by the Parenting Plan.  Child support is a big one.  Support should be paid, as required.  This means the amount needs to be what was ordered, and the payment needs to be made at the time that it is ordered.  A support obligation is not subject to waiver by the other party.  This means that one parent still owes the money, even if the other parent says they don’t want the money.  I have had cases where the parent paying the obligation winds up with a huge judgment against them later, because the other parent said essentially “don’t worry about it.” Minds change when money is tight.  It is also important to pay through the Sate of Tennessee, if that is what was ordered.  Payments made directly to one parent, in cases where it is ordered to be paid through the State of Tennessee, can be legally considered  gifts.  Thus, payments not made as the order requires, may very well be paid twice.
  9. Pay the required portion of medical co-pays.  These are also required to be paid, and one can be held in contempt for not paying. The party requesting payment is generally required to send the bill to the other parent, who then must pay their share within a specified amount of time.  I have seen cases where one parent has held on to the bill for an extended amount of time, before requesting reimbursement.  The Court will typically require reimbursement regardless.  However, sitting on such bills for an extended period of time, may work against one’s ability to punish the other parent for non-payment.  Sitting on medical bills and then dumping huge amounts of expenses upon the other parent, is not the proper way to go about obtaining compensation, and doing so is likely to impair the relationship between parents.
  10. If you are the party paying, keep good records of the payments, in terms of the amount of payment, and what the payment was for.  I suggest people do this by check, as it is easy to confirm that the payment cleared. I have seen people pay twice, when payment was made by cash or money order—because there is no easy way to confirm realization of the payment (i.e. ‘they got the money’).  All the payee has to say is “I didn’t get it.”  Typically, the burden of proving the payment was made, and received, is on the person making the payment. That might not be fair, but that is what it is.
  11. If the decision making is “joint,” consult the other parent.  Typically, these concern areas of extra-curricular activities, education, non-emergency medical, and religious upbringing.  Typically, the Parenting Plan requires that disagreements on joint decisions must be submitted to mediation.  Unilateral decision making in joint areas can result in contempt proceedings and sole financial burden for the decision made. Further, disregard for joint decision making gives the appearance that one parent is minimizing the other parent’s participation, which could impact later litigation if it happens.
  12. Respect the other parent’s time.  Do not enroll the child in activities that occur during the other parent’s time, unless they agree to it.  In practice, this presents itself as one parent attempting to usurp the other’s parenting time, by scheduling the child for a host of activities during that other parent’s time.  This typically breeds further litigation.  Remember that the other parent may not be obligated to convey the kids to the activity during their parenting time—absent a court order to the contrary. If both parents have agreed to the activity, it will be expected that both parents ensure the child’s participation in that activity.  As children grow older, and engage in school activities, it is important for the alternate parent to remember that kids, as they age, need their social activities as well.  Withholding a child from such activities, when the kids get older, can breed resentment in the children over spending time with the alternate parent.
  13. Keep the alternate parent informed of what is going on with the children’s health.  This can be an email or just a text.  I generally advise email, as they are easier to save, and provide a good record if needed later. Assume any communication you make will be seen by a Judge one day.  Social calendar and school/church events are good things to provide the other parent.  If the child is sick, let the other parent know, and not just when the child is sick after the child has spent time with the other parent.   Typically, one parent spends the majority of time with the child, and winds up being the parent taking the child to doctor’s visits and dental appointments.  Feedback regarding the health reports of the child is helpful to maintaining a good co-parenting relationship.
  14. Involve the other parent, even when it is not their parenting time.  When the child has a school field trip, invite the other parent.  If the child has a school free day, let the other parent see the child if it is conducive one’s schedule.  It might be beneficial to give the other parent a schedule of the child’s health appointments, and see if the other parent would be interested in taking the child to them.  Doing so evidences a willingness to foster a relationship between the child and the other parent, which the law encourages. Remember that, in many cases, the post custody situation very much leaves one parent out of the child’s loop.
  15. Be accommodating as to times of pick up and delivery, during exchanges.  Depending upon the distance between the parents, strict punctuality may be difficult.  Sometimes, things happen during travel that may cause the exchange time to change a bit.  For young children, it may be that they wanted food, or a bathroom break, in route.  Perhaps one parent ran into traffic, or was caught up behind a wreck.  Maybe someone had to work later that day.  A school or social event may have interfered.  I typically tell people to give fifteen minutes each direction, in terms of pick up and deliver times.  If one parent is consistently and considerably late, or early, with exchanges, then it may be time to revisit the exchange times with one’s attorney.
  16. Do not cause drama at exchanges.  Sometimes, the exchange is the only time where two parents will actually have face time. Temptation is strong to address every problem you have with the other parent, at that time.  Remember that the children see this interaction, and adverse interaction between parents, in front of them, is bad (and can result in modifications of the Parenting Plan).  This is not a time to address one’s every grievance.  Where parents get along well, I do not generally harbor concern about what goes on during exchanges.  When parents have acrimony of any kind, the best practice is to merely exchange the children silently, and promptly depart. Periodically, it is necessary to amend the exchange location to a neutral location.  If one parent creates conflict during an exchange, the advisable thing to do is not participate in it.  If drama persists, consult your lawyer in how to best address it.
  17. Encourage kids to celebrate the other parent.  This might be as simple as having the kids make a birthday card for the other parent.  I encourage parents to remember holidays and birthdays.  Take the child shopping, buy a present for the other parent, wrap it, and let the child bring it back with them.   Have the child make crafts, paintings, pottery, cards, ornaments and such, for the other parent.  Allow, and even encourage the child to express love for the other parent, even when not with that parent.
  18. Encourage interaction with the other parent, during their off parenting time.  This applies more to the relationship between the child and non-custodial parent given the reduced time they will spend with the child.  Involve the other parent, at times where assistance is needed (like babysitting for example).
  19. Usually, the parenting plan requires that a parent have several uninterrupted phone calls with the child each week, and requires that the parent be able to send letters and cards to the child, unopened.  A child should be permitted to have contact with the other parent as much as the child desires, within reason.  Excessive contact, and contact for extended amounts of time, could be problematic (and should be discussed with a lawyer if it is of concern).  Generally, I see more problems arise with phone calls.  These calls should not be monitored by the other parent, absent good cause.  The parent should not require the child to use speakerphone and should not be listening in.  If the call is missed, the call should be returned. Calls should be structured such that they can be anticipated at certain times, on certain days. Communication to the other parent should be given, if the call time/day unavoidably interferes with something else. A call should not be recorded, unless a lawyer has advised the parent otherwise (third party recording is also illegal).  Calls should be at reasonable times.  If the child reasonably wants to contact the other parent, the child should be afforded the opportunity to do so.
  20. Do not say bad things about the other parent.  In fact, the Parenting Plan typically forbids it.  This is a hard one sometimes.  Remember that your children are the product of yourself and the other parent.  Telling a child “you are just like your mother/father” can be derogatory, and leave the child feeling poorly about themselves.  The child may begin to believe that the other parent is bad, if told enough times how bad the other parent is. Kids want to love both parents.  Further, negative comments are often repeated by children, which does nothing to facilitate a peaceful relationship between the two parents.  Same applies to saying bad things about the other parent’s relatives.
  21. Encourage the child to relate concerns about their parenting time, directly to the other parent.  Be careful of this one, as a tendency exists to have the child relate the concerns of the other parent, instead of themselves (that will get one in trouble).  The child is not the messenger.  If the child expresses concerns about the separation itself, or things relating to the separation, or involvement of the other parent, then encourage the child to discuss those concerns with that parent.  I also encourage parents to allow their children to participate in counseling, if they have trouble expressing concerns. A counselor will know how to address the concerns with the child, and can offer suggestions with how to deal with the other parent.   Both parents should be allowed the option of participating in counseling, along with their children.
  22. Do not use the child as the messenger.  Never place the child in a position of relaying adult matters to the other parent.  For example, the child should never be directed to ask the other parent where the child support money is.  That is an adult matter, as are most of what is contained within the parenting plan.  Interaction between the two parents should take place between the parents (again, I prefer use of email).
  23. Keep non-parents out of the mix.  Most often, I see this occur with grandparents and step-parents.  Sometimes, the relationship between the parents is such that communication with a third party is preferable, and in this case, can be helpful.  However, allowing one’s parents or new spouse, particularly an overbearing one, to dictate to the other parent how to exercise parenting time, or the terms of parenting time, can create problems.  At the end of the day, the step-parent has zero authority with regards to the child and the Parenting Plan.  Frankly, neither does a grand parent.  Persistent problems in this area can be addressed via court action and a restraining order.  This is a matter between the two parents, and no one else.  That applies to discipline as well.  The only person that should be disciplining the child at home, is the parent. If a third party presents an ongoing problem, one should consult their lawyer about the situation. There are means to place third parties under the control of the Court as well.
  24. Do not encourage the child to keep secrets.  Very often, a parent will specifically tell the child not to tell the other parent about something.  It may be regarding a vacation, or a new paramour, or an activity or incident inside the home. Encouraging a child to keep secrets teaches the child that it is proper to keep secrets.  This makes a child more susceptible to abuse, as secrecy is a component of that. It also teaches the child that secrets are ok, and later the child will feel more comfortable keeping secrets from both parents (like how they spend their personal time when they are older).  A child should feel comfortable talking about whatever they like, with the other parent.  However, this goes hand in hand with not interrogating the child about what goes on at the other parent’s home.  Don’t pepper the child with questions, and don’t create an environment where a child feels they must keep secrets.
  25. Accept that your relationship with the other parent is over. You have new boundaries now. Whatever transpired between two people that caused the separation is done. A new relationship now exists.  One that focuses strictly on the children.  Absent a health or safety threat to the child, the person your ex is dating is none of your business.  As long as financial obligations are met, what the other parent purchases with their money is none of your business. Where your ex goes on vacation without the kids, is none of your business.  Unless it is illegal, what they do with their personal time is none of your business.  Interrogating every friend and relative of the other parent, is not conducive to a good post custody relationship.  It is not psychologically healthy to do that in the first place.  If a parent has a specific and justifiable concern about another parent, there are proper methods for looking into those concerns, which can be addressed with a lawyer.  Constant Interrogation of the other party is not a proper method.
  26. Keep the other parent informed about vacations.  The Parenting Plan typically requires that a parent advise the other parent of the destination, address, itinerary, route of travel, where they will be staying, and a phone number that can be used to reach them in case of emergency.   Further, this practice will facilitate the ability of the non-traveling parent, to call the child while the child is away.
  27. The purpose of child support is to compensate the other parent for money they spend on the child.  The child support guidelines take into account that both parents are spending money towards the child.  The amount that is ordered to be paid, goes to the parent receiving the support, not the child.  It is compensation to that parent.  The other parent can spend it on what they want to spend it on.  The parent receiving the support should understand that, unless otherwise stated in the Parenting Plan, the sum paid covers expenses for: food, clothing, school uniforms, school supplies, and incidental expenses.  Day care is often included in the child support calculations, and when it is, then support covers that also.  Extra expenses such as extra-curricular activities and medical expenses are typically covered separately in the Parenting Plan, and divided either equally, or in relation to their respective incomes.
  28. Don’t let your kids sleep in the bed with you.  This seems to be an ongoing complaint.  For young children, this happens more often. Encourage the child to sleep in their own bed.  Sometimes a young child has a nightmare, or at times just wants to feel close to a parent, and this is fine, from time to time.  As children age, the conduct should be discouraged. A teenager sleeping in the same bed as a parent should be avoided—particularly with children of the opposite sex.  That is asking for trouble.
  29. If the child has special medical needs, such as medication, communicate that to the other parent, and send the medication, or details regarding the condition and treatment, with the other parent. If problems exist with one parent not providing treatment for a condition, particularly a life threatening one, consultation should be made with an attorney.
  30. Send the things the child brings with them to visitation, back with them, and visa versa.  For example, if the child arrives in clothes and shoes from Mom’s house, the clothes and shoes need to come back. It is not difficult to simply wash the clothes, and then clothe the child in those clothes for the return trip. By the same token, if Dad sends the child back in clothes from his house, send the child back in them.  The child will end up with clothes at both parent’s house, and toys at both parent’s house.  And those toys and clothes should wind up repatriated with the point of origin.Not doing so just comes across as petty.
  31. Understand that parents will do things differently at their respective residences.  One parent may have a set of rules that will not apply, or be enforced, at the location of the other parent.  One parent may have a different diet than the other parent. While it is better for both parents to be largely together on these things, that is not always reality. Unless the differences amount to a major health or safety issue, not much can be done about it. In cases where the health and safety of a child is threatened, consultation should be made with a lawyer.
  32. Understand that the child will be exposed to new people, including romantic partners.  People move on, and build new social circles.  It is difficult to prohibit one parent from introducing a child to new friends and romantic interests. With romantic partners, the slope is indeed slippery, regarding what is appropriate.  Some Parenting Plans make specific prohibitions against paramours, and in those cases, specific legal advice should be sought regarding them.  Absent a prohibition, accept that it is going to happen. If a person is exposing a child to inappropriate or dangerous behavior, then consultation with a lawyer is necessary.  Be mindful that, where two parents have been together during the majority of the child’s life, introducing a new romantic partner can be destabilizing for them.  Care must be taken in how that relationship is introduced, and a therapist is best suited to advise on that process.

While this is not an exhaustive list, these are the more common ones.  This article is not intended to be, and should not be considered, legal advice, to any specific person, regarding any specific issue. A legal matter is complex in nature, and takes into consideration a number of specific and unique facts, that are applicable to that unique specific circumstance.  It is my hope that these points will assist in smoothing out the co-parenting environment.  Resolution of specific problems in the co-parenting process should be directed to a lawyer.  If my office can be of assistance in addressing those issues, please feel free to contact me.  Inquiries may be directed to nickutterlaw@aol.com, or my office, at 615-250-8000.

 

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