Who gets the kids when you can’t take them?

“Right of First Care”, or “Right of First Refusal”, is a fancy way of saying “if you can’t be with the kids on your parenting time and need someone to watch them, you have to ask me first, and only if I can’t be with them can you ask someone else.”

A lot of parents demand it. Most of them haven’t thought through all the nuances.

Scenario: You finally got back out there and started dating, and you met someone wonderful. Normally, you try to plan date nights during your co-parent’s parenting time. But your beau scored tickets to your favorite band and wants you to go with, although tragically the concert happens to be on a night you have your kids. Because you agreed to a Right of First Refusal clause in your parenting plan, you now have to make the uncomfortable choice between turning down the date night of your dreams, or emailing your ex-spouse to inform them you’re going on a date, won’t be able to watch the kids, and have to ask whether you can drop them off with them for the evening.

Or, what if your kids want to have a sleep over with friends? What about a night at grandma’s house? Do you have to first ask your ex-spouse’s permission?

Ew.

So, why do parents ask for it? There are some extreme situations in which it makes a lot of sense. For example, if your co-parent repeatedly and frequently plans obligations after work during their parenting time, leaving your kids with babysitters when you are otherwise available, then yes you would have reason to be concerned. Even more if your co-parent has to travel during their parenting time and decides to leave your children with a friend for several days.

Let’s go back to the underlying principle: Children do best when they have connected, attentive parents who have frequent, meaningful contact.

But let’s also balance that with another principle: Both parents deserve a reasonable amount of privacy, respect, and autonomy in terms of how they make day-to-day parenting decisions.

How these two principles balance out depends on the context.

So our first recommendation would be to just let go of the idea of Right of First Care. While you understandably want some say in who your kids are with, remember too that whatever you require of your coparent will most likely be required of you too.

However, if you are concerned about a potential or pattern of your kids frequently being left with someone else during your co-parent’s parenting time, consider these options:

1. If the issue is related to work-related daycare (paid, or with family or friends), consider your options for shifting your parenting schedule forward or backward a couple days. If your relationship with your co-parent is open enough, offer to have the kids with you during those regular day care hours. However—and we know this is hard—most often there’s not much you can do here. People work and kids go to child care, even when not in a divorced family. As long as they’re safe and you reinforce they’re loved, they will be okay. And courts usually won’t take parenting time from a parent just because they’re work schedule necessitates work-related daycare. In fact, they’re more likely to order an arrangement for you contributing to the cost of it, usually in child support calculations.
2. If the issue is regular, frequent daycare but not related to work, you may have a little more room to convince a judge to modify the schedule or increase your parenting time. However, we will caution that this is a very gray area and the judge would be more concerned about the child’s safety, and the parents’ commitment to taking parenting time seriously.
3. If the issue is frequent and regular overnights where the on-duty parent is choosing not to be with (i.e., sleep in the same home as) the children, this may be the scenario where a judge is most likely to disapprove. Parenting time is about both the daytime and nighttime care of the children. For young children especially, nighttime is when parent connection and care are most critical. However, even here, the specific circumstances matter. (Talk with a lawyer for specific advice.) But of all the scenarios, this is the one where we most agree with a Right of First Care clause.

If you do decide to include a Right of First Care clause, make it specific and time-bound. For example, make sure it only kicks in if a parent cannot take their parenting time for more than 2 consecutive overnights at a time. Clarify that this only applies if the other parent is unable to take their parenting time—not just that the kids are choosing to have an overnight event out of the house.

All that said, in high conflict cases, we’ve seen many judges not only refuse to add Right of First Care clauses, but outright rip them out of parenting plans because of their frustration with having to deal with the unintended and nasty consequences. This is not as cool as it sounds.

Right of First Care was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

Yours, the kids, joint parties, and schedule changes.

Who has the kids on their and your birthdays, whether you adjust the parenting schedule to program fairness, who hosts the kids’ birthday parties, which of your kids’ friends you’re allowed to invite…

If these aren’t part of your parenting plan thinking, don’t worry. In the grand scheme of everything being disrupted in life, birthdays can sort of fade into the background. But eventually you’ll have the experience of realizing you’ll likely miss half your kids’ birthdays and birthday parties. And that stings. Deep.

However, like with most things here, we recommend handling birthdays as simply as you can, while still tuning in to your kids’ needs.

First, schedules. Remember that every parenting schedule adjustment you introduce is another opportunity for potential conflict between you and your co-parent, and confusion for your kids and those in their lives. For at least that reason, we recommend not calling out birthdays — yours or the kids — in the parenting schedule section of your parenting plan. Plus, who has who on birthdays will generally balance out over time.

This usually means creating new traditions on the weekends before or after a specific birthday, as well as finding new meaning in birthdays without your kids. (We know this is a lot easier to say than live. Believe us, it does get easier.)

Next, birthday parties. Whatever you read or hear from others, we do not recommend obligatory joint birthday parties — the kind where your parenting plan requires you and your co-parent to plan and attend a birthday party for your child together. If you can make this work, great. Work that out on the side between the two of you. But don’t make it a requirement in the parenting plan. We’d hope if you did you would be able to make that enjoyable for the kids and not re-traumatizing for you, but experience suggests that’s usually—if not almost always—not the case.

We also don’t recommend language about alternating each year who has permission to plan the friend birthday party. Too messy and too many ways that could go wrong. (Is your co-parent allowed to invite your nieces and nephews, or your neighbors’ kids? If it’s not your “assigned” year and you want to have a little friend get together, would that count as a party and violate the plan?)

Instead, celebrate the weekend before or after the birthday, if you don’t have parenting time with them the day of. If your co-parent plans ahead well enough to get invitations out to school friends before you get the chance, good for them. Nothing’s stopping you from inviting even those same friends to a no-present celebration for your child. Our kids have already gone through enough, and anything you can do around their birthdays to help them feel like “normal” kids—to help them believe they’re the most special kid in the world, and that they’re surrounded by fans who love them—it means the world to them.

Last, birthday presents. If your coparent goes overboard, just let it go—even and especially if they have less parenting time than you. The real problem isn’t the gifts. The feeling of needing to “make up” for other deficits can be really loud. But instead of going on about it around your kids, or allowing it to distract and discourage you, focus on meeting your child’s need to feel important to those in his/her life. Help them feel loved through all the love languages. Encourage them to ask for what they really need, but to understand that some people can be good but still not able to give us what we need. Eventually, your kids will look back through the eyes of an adult and your love now can make up for a lot later.

And for what it’s worth, consider helping your kids think of and prepare gifts for your co-parent on their birthdays. No, don’t add this as a requirement in the parenting plan. But, if your healing allows it, consider it. It’s not actually about giving gifts to your co-parent, but about teaching your children about appropriate expectations in healthy relationships.

Birthdays for Kids of Divorce was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

While many parenting plans apply the same parenting schedule during school summer break as during the school year (with exceptions for SUMMER VACATIONS), some swap to an alternate schedule based around the unique activities and work schedules of summer.

For example, parents at or near equal parenting time may agree to shift to a WEEK ON WEEK OFF parenting schedule during summer to simplify planning for summer camps, vacations, travel, work, etc.

Others may extend long weekends, like from a 2–2–3 schedule to a 5–2–2–5.

Keep in mind that because most summer camps run Monday to Friday, a summer schedule requiring mid-week exchanges means you’ll need your co-parent’s agreement on any summer camps (see ACTIVITIES) — one of the biggest reasons we recommend week on week off schedules during summer.

Also refer to the section on SUMMER VACATIONS for how to adjust the summer schedule to accommodate more extended parenting time for vacations, travel, etc.

If your summer schedule does differ from your school year schedule, be sure to include language in your Plan specifying when your summer schedule starts and stops. (For example, for a week on week off summer schedule with exchanges on Monday mornings, you could specify that the “Summer Schedule” starts the Monday after the last day of school, and returns to the “School Year Schedule” the Monday before the first day of school.)

What We Recommend

• If your kids are 3 or older and your baseline parenting schedule is at or close to 50/50, we highly recommend a WEEK ON WEEK OFF summer schedule. Yes, it means less frequent back and forth with the kids. But it also means less frequent back and forth. And it’s much simpler for planning trips, vacations, reunions, activities, play dates, summer camps — you name it. Optionally, tie in some language about how and when to extend parenting time for longer SUMMER VACATIONS.
• If your kids are younger than 3, or your baseline parenting schedule is not near 50/50, we recommend sticking with your routine, SCHOOL YEAR PARENTING SCHEDULE for summers, and add in language for how to select extended parenting time for SUMMER VACATIONS. (Don’t forget that you can add step up language to your plan: “For the next two years, we’ll use this plan. Starting in Summer 20##, we’ll shift to this other plan.”)

Summer Co-parenting Schedules was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

This is the part of your parenting plan that most affects how you and your kids experience divorced life.

While both you and your coparent are always your kids’ parents, only one of you is “on duty” at a time. The parenting schedule defines when you and your coparent are each “on duty” during the SCHOOL YEAR, SUMMER, and HOLIDAYS and special occasions, like FUNERALS AND WEDDINGS.

Courts used to refer to this as “physical custody”, but almost all now talk about this as “parenting time”, denoting a shift away from possession toward CONNECTION.

The primary principles guiding parenting time are:

• Supporting the children in building strong relationships with both parents.
• Enabling consistency and predictability for the children.
• Accommodating for the children’s developmental stages and individual attachment and care needs.
• Protecting the children from any form of abuse.

If you and your coparent can reach agreement, you can actually decide on any parenting schedule you want. Courts would rather parents agree on a complicated plan than order a simple one they’ll resist following. However, keep the above principles in mind.

Also keep in mind that every reputable, longitudinal study about children of divorce shows objectively that their long-term outcomes are best when they have strong attachment with both parents. This includes academic scores, college attendance, encounters with the justice system, self-harm, mental health, physical health, healthy relationships and marriages of their own, household income, and so much more.

Even when one or the other parent is not ideal, a parenting schedule that allows for meaningful emotional connection with both parents is key to the children’s long-term wellbeing.

Exactly which parenting schedule that means you should adopt is not a one size fits all formula. Every child and family is different. We’ll share more ideas about that under SCHOOL YEAR PARENTING SCHEDULE.

Obvious exceptions are where there’s a history of abuse by one or both parents requiring a SAFETY-FOCUSED PARENTING PLAN, or where you and your coparent live far enough apart to warrant a LONG-DISTANCE PARENTING PLAN. Even here, you’ve got options.

Parenting Schedule was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

And options in between.

Again, the most important point here is that when it comes to big custodial decisions, your kids deserve for these to be made and resolved clearly and quickly so they can get what they need.

The two most common forms of arranging this are Joint Custody and Sole Custody.

Sole Custody puts final authority for custodial decisions in the hands of one parent. However, this does not absolve that parent from involving the other parent in the decision-making process. Sole custodian parents must still:

• Inform the other parent when a custodial decision has to be made and what options are on the table or known.
• Do this enough in advance that the other parent can research, get second opinions, ask follow-up questions, and share input. (Usually 7 to 14 days.)
• Take the other parent’s input seriously.
• Make the final decision in behalf of the children.
• Let the other parent know the final decision and why they made that choice.

In other words, most of the work and all of the consequences fall on the custodial parent.

Joint Custody, on the other hand, traditionally doesn’t choose a single parent as a final decision-maker. Both parents have to work together to reach agreement. Some parents make this work fine. In many cases, it means critical decisions aren’t made at all, or can’t be stopped once started. Many parents choose joint custody while in an amicable place with their co-parent, only to find this later leads to real issues.

Courts can’t order joint custody if either parent expresses they don’t want it. (That would defy the whole premise of joint custody.) They also can’t force you to keep joint custody if either parent asks to change it to sole custody.

So for multiple reasons, traditional joint custody has its weak points.

But it also has its strengths. Most people — including many healthcare providers and educators — don’t understand the limitations around legal custody, so misinterpret what it means if you aren’t the parent with sole custody. Like whether you can see the kids’ medical records, or join appointments, or meet with the kids’ doctors on your own. Joint custody can relieve a lot of that frustration. It can also be a way to help both of you feel invested in your kids’ lives.

For all these reasons, many courts and more collaborative-minded lawyers have begun adapting traditional joint custody to include language specifying what to do when the parents disagree on a major decision, usually giving one parent the tie-breaking vote but with rules around seeking and considering the other parent’s input similar to under sole custody. This allows parents to still adopt the title of joint custody, without sacrificing clear defaults in decision-making when they can’t reach consensus. Some parents even divide up final decision-making: one parent for medical, the other for education. Or, they agree on some decisions ahead of time in the parenting plan, and then divide up whatever is left.

Joint vs. Sole Custody was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

Less power and more work than you think.

Custody is about how to move forward when you and your co-parent need to make big decisions—those that have significant impact on your kids’ lives and wellbeing. It is not linked to parenting time.

Even in terms of decision-making, legal custody is about less than you think it is. It’s highly focused on just your kids’:

1. HEALTHCARE,
2. EDUCATION, and
3. RELIGION.

And sometimes, permanent & semi-permanent APPEARANCE.

When it comes to these major decisions, your kids deserve to have their needs met clearly and quickly. In particular, when their parents disagree, they deserve a way to still move forward and get what they need.

These are beyond your average decisions about getting homework done on time or whether to take Advil or Tylenol. These are big decisions, like whether to attend private or public school, whether to start a kid on an anti-anxiety medicine, which parents’ church to go to (or whether to go at all), and which doctors to use. The scary ones.

Courts classify these decisions differently from other co-parenting decisions because of their importance to and impact on kids’ lives and livelihoods. Rules about this custodial decision-making process and who gets the final say are what is referred to as “legal custody” — or usually, just “custody”.

But a lot of people also mistake “custody” for parenting time. These are not the same. You’ll have to explain this to too many people in your world. Parenting time — what was once called “physical custody” — is not at all tied to legal custody, although some of the factors used to decide it may be the same.

Legal custody is also more work than you think. No matter who has custodial decision-making authority, both parents have equal rights to most information about the children’s health, education, activities, identity, and wellbeing. But a parent granted sole custody, or final custodial decision-making authority has the added expectation of consulting with and getting input from their coparent, and staying within the boundaries of their custodial authority. More ENFORCEMENT cases are about custodial overreach than almost any other topic.

Custodial Decisions was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

There are four types of decisions in co-parenting:

1. CUSTODIAL DECISIONS
2. DAY-TO-DAY DECISIONS
3. EMERGENCY DECISIONS
4. DECISIONS ABOUT THE PARENTING PLAN

Custodial — or “Major” — decisions extend only to the major aspects of the kids’ healthcare, education, and religious observance. Some parenting plans also include here decisions about the kids’ permanent or semi-permanent appearance. (tattoos, piercings, haircuts, cosmetic surgery, etc.). This is what we mean when we talk about “custody” or “legal custody”, whether “joint custody” or “sole custody”.

Day-to-day — or “Minor” — decisions include almost everything else you’ll encounter in the regular course of co-parenting, including most aspects of the kids’ involvement in extracurricular activities.

Emergency decisions are those that can’t wait for the other parent’s input or parenting time without putting your kids in danger. Think emergency rooms, urgent care, or natural disasters.

Parenting plan decisions are the ones about what is or isn’t in your parenting plan document. These decisions are either made by agreement (stipulated) or by a judge when you can’t agree. Either way, they’re made enforceable usually by being incorporated in a court judgement. (More on the unusual methods later.)

Coparenting Decisions was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

Kids of divorce deserve:

1. To feel like they don’t have to choose between their parents.
2. To be oblivious to coparent conflict, and certainly never intentionally involved in it.
3. To be unaware of court proceedings between their parents as much as possible.
4. To have a sense of predictability about their lives in terms of where, how, and with whom they live.
5. To have the amount and frequency of time with both parents necessary to create lasting, emotionally secure bonds with each.
6. To be safe from emotional, physical, and sexual harm or abuse.
7. To feel heard even when they can’t necessarily decide for themselves.
8. To have as close to a “normal” childhood as possible, including healthy responsibilities, accountability, discipline, and boundaries.
9. To have both parents involved in their activities and interests.
10. To be able to move forward quickly in personal, religious, educational, and medical pursuits when their parents disagree as to how to handle these.

Bill of Rights for Children of Divorce was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

For the court, for your kids, for you.

Truthfully, most courts only require parenting plans to do two things:

• Assign legal custody.
• Describe the parenting schedule.

Beyond this, judges spend their lives debating how specific parenting plans should get, with some arguing less detail allows parents to be flexible without having to return to court, and others claiming painful detail prevents misunderstandings and disagreements and … keeps families out of court.

In other words, the courts’ perfect parenting plan is the one that keeps families out of court and out of conflict. But don’t ask them how to make that happen.

So what’s the right answer?

Ultimately, parenting plans are about protecting and connecting.

1. Parenting plans protect your kids from conflict. They already naturally experience trauma from divorce; they don’t deserve any more. Especially when there’s something we can do to protect them.
2. Parenting plans help kids connect with both of their parents. All respected, longitudinal studies show children of divorce do better in life if they develop strong bonds with both their parents. The exceptions are obvious and rare.

In other words, your kids are the reason for everything in a parenting plan, and you should be able to tag every sentence in your parenting plan as either protecting or connecting.

For the same reason, your job as a coparent is to protect your kids from conflict (including from you), and to connect your kids with both of their parents (including that person you’re divorced from). All of coparenting comes back to this. And if you don’t do your job as a coparent, even a perfect parenting plan is just a worthless piece of paper.

Parenting plans, then, are also about helping protect you from conflict, and helping you connect with your kids. Especially if you’re in a high conflict situation, it can be excruciatingly difficult to know when to dig your feet in, and when to allow give and take. Or what to do when you and your coparent disagree. Parenting plans give you both something impartial to fall back on. They are your healthy boundaries (especially when you’re coparenting with one who doesn’t care much for boundaries).

As to how much detail is necessary, you can’t anticipate everything, but setting clear guidelines and defaults can help immensely when you do encounter the unknown.

And ultimately, it depends a lot on who you’re coparenting with — not who you both are on your best days, but on your worst days.

Why parenting plans? was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.

Start

Why parenting plans?
What’s in a parenting plan?
Defaults
Best interests
Bill of Rights for Children of Divorce
Your worst day of divorce
Safety-focused plans
Long-distance plans

Decisions

Coparenting Decisions

Custodial Decisions
Joint vs sole custody
Custody vs Parenting Time
Healthcare decisions
Education decisions
Religious decisions
Appearance decisions

Day-to-day decisions
Medications
Electronics
Illnesses
Child care
Safety

Emergency decisions
Disaster decisions
Decisions about the Parenting Plan
Coparent communication
Coparenting apps

Parenting Time

The Parenting Schedule

Routine parenting time
Common Parenting Schedules
School Year Schedule
Summer Break Schedule

Holiday and Vacation parenting time
Spring/Fall Break
Summer Vacations
Thanksgiving
Winter Break
Mother’s Day / Father’s Day
Halloween
Other Holidays

Birthdays
Transitions
Swaps
Right of First Care
Funerals & Weddings

Other Provisions

Affection & respect
Communicating with the kids
Step-family & partners
Extended family
Travel
Passports/IDs
Kids’ vehicles
Relocation

When things go wrong

Enforcement
Modification
Mediation
Arbitration
Parent Coordinators
Reference Judges
High conflict

Taking care of you

Podcasts
Coaches
Dating

We’re not your lawyer and nothing here is legal advice. We strongly recommend you not submit anything to a court without having a lawyer at least look at it for you. We also don’t know the specifics of your kids, you, or your coparent.

Parenting Plan Guide was originally published in Plain Coparenting on Medium, where people are continuing the conversation by highlighting and responding to this story.