When parents don’t agree on a child custody issue, the parenting plan is the tiebreaker. Given this power, family law attorneys need to draft parenting plans with the utmost care to make sure that uncertainty and ambiguity don’t undermine the best intentions.
A court-ordered parenting plan governs how parents will share the “care, custody and management of their child.” What goes into a proposed plan is often the result of extensive negotiations and mediation.
Parenting plan provisions must be clear, certain, and directive. The goal is that anyone who needs to review the plan, e.g., parents, judges, court personnel, school/daycare personnel, or law enforcement officials, can quickly find and understand the relevant provisions. Ambiguous language can create conflict, result in unenforceable or impractical provisions, and often requires litigation to achieve clarity.
Regardless of the specific plan provisions, follow these 10 tips for every parenting plan you draft to guide all parties towards maximum clarity—and minimal conflict:
- Use an outline and label sections with headings.
- Use the simplest possible language, never exceeding a 12th-grade vocabulary and avoiding legalese.
- Keep sentences short.
- Use the present tense.
- Use the terms “legal custody,” “physical custody,” and “visitation” to increase the probability of recognition and enforcement in other jurisdictions. Generally, this requirement is satisfied by stating: “The parents are awarded joint legal custody according to the following plan” or “The parents are awarded joint physical custody according to the following schedule” or similar language that brings the plan within the statutory scheme and goes on to provide the specifics.
- When using terms of art based on the Family Code, cite the relevant code section and, when appropriate, incorporate the language of the code section into the plan.
- Distinguish between duties and elective acts by using “must” (or “will”) or “may.” “Shall” creates ambiguity because it has at least eight separate meanings.
- Avoid provisos. The phrase “provided that” may be read as an exception, condition, addition, or limitation.
- Never use the passive voice; always specify who “must” or “may” do what.
- No one ever remembers who is the petitioner and who is the respondent once they get off the caption page. Use “Petitioner-Mother” and “Respondent-Father” (when the parents are opposite sex) or identify the parties in the first paragraph, and then refer to them consistently by name throughout the order.
For everything you need to know about drafting parenting plans, turn to CEB’s California Child Custody Litigation and Practice, chapter 4.
Other CEBblog™ posts you may find useful:
- Thinking Ahead: Pre-Birth Custody and Visitation
- Are Parents Required to Pay for College?
- Danger Ahead: 7 Child Custody Clients to Avoid
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