Pasternak & Fidis Reporter

February 12, 2019

Books for Family Lawyers (Preview)

Parenting Plans: Meeting the Challenges with Facts and Analysis

After a separation or divorce, parents need to have a plan to raise their children. It can be particularly challenging to navigate a fundamentally cooperative undertaking after the parents’ relationship has ended. In Parenting Plans: Meeting the Challenges with Facts and Analysis (American Bar Association 2018), author Daniel Hynan, Ph.D., analyzes some of the issues a parenting plan should address. Dr. Hynan blends individual assessment with scientific studies in making his recommendations. Because nearly a quarter of all children of divorce suffer “significant adjustment problems,” it’s critical to make sure that each parenting plan fits the family. A well-constructed parenting plan can account for scheduling, decision-making, and other contingencies that might arise. Dr. Hynan provides guidance for lawyers, mediators, and other professionals who work with parents seeking to develop parenting plans with their clients.

Generally, a parenting plan may include a parenting time schedule, memorialization of parental decisions that the parties have already made (such as arrangements for education, health care, and religion), protocols for making future decisions, procedures for changing the schedule, consequences for violating the plan, financial obligations (such as responsibility for educational expenses), and access to records (such as educational and medical records). Among other things, the book provides sample parenting schedules for children of various ages, which can be used as a starting point for professionals looking to incorporate Dr. Hynan’s recommendations into a parenting plan.

Issues Concerning Young Children

A key component of a parenting plan is the parenting time schedule. Crafting a schedule can be difficult, especially for parents of young children. Should there be overnights for each parent or should one parent have only daytimes and evenings? Is the child more securely attached to one parent? Why does she cry every time there is a parenting transition?

According to Dr. Hynan, research has shown that, so long as both parents take care of the child positively and are able to co-parent well together (or at least with as little friction as possible), it is generally positive for even very young children to have overnights with both parents. Dr. Hynan cites research that contradicts a common belief that a very young child should sleep in the same home every night after the parents separate.

The right parenting plan for a family with a young child should include an individualized assessment of both the child and the parents. To determine whether overnight parenting time with both parents is best, that assessment should consider patterns of parental interaction, as well as the history of conflict between the parents. For an objective analysis, parents may enlist the help of a mental health professional.

Same-Sex Couples

Scientific research confirms that there is no significant difference in adjustment for children of same-sex couples who divorce from that of children of heterosexual couples that divorce. Therefore, the approach to developing a parenting plan for them will not differ from that of an opposite-sex couple.

Unmarried Parents

On the other hand, children of cohabiting parents who never married have a much more difficult time when the parents’ relationship ends. The research shows that children can be affected negatively when they go through many family transitions. For a child in such a circumstance, stability consistently leads to more positive outcomes. When parents are not married or did not cohabit, a parenting plan should strive to implement a predictable routine to provide as much stability for the children as possible.

Family Relocation

Relocation of a parent can be especially difficult following divorce. Custody settlements typically prohibit one parent from unilaterally moving a child out of the area where the parents are living at the time of the settlement without an agreement or a court order. Part of the challenge in resolving relocation cases is the simple fact that there is often no satisfactory compromise when a parent plans a long-distance move and seeks to take the children. Even when one parent has primary physical custody and does more of the day-to-day work of child-rearing, when the other parent has a good relationship and has used all of his/her assigned parenting time, a long-distance move will curtail an important connection to that parent.

For parents who wish to negotiate a solution that permits a move, Dr. Hynan makes several suggestions to put the children in the best position to adjust. One way that the parents can alleviate the effects of a long-distance move is a plan that allows children to be with the non-custodial parent for the bulk of the summer break. When combined with routine monthly visits during the school year, this arrangement can be fashioned to give the noncustodial parent about 30% of the custodial time, or roughly 110 calendar days. Dr. Hynan also makes the point that electronic communication is a great tool to supplement a parent-child relationship, but it should never take the place of a personal relationship.

Mental Health Assessments

Mental health disorders afflict nearly half of Americans over the course of their lifetimes. The incidence of mental health disorders is roughly the same for children with separated parents. A parenting plan that involves a child who may have a mental health disorder, big or small, should incorporate recommendations of a mental health professional. A parenting plan should match the strengths of each parent in coping with any mental health concerns. For example, a parent who denies the existence of an accurately-diagnosed condition should not be responsible for decisions about the child’s mental health treatment and may need to have reduced parenting time.

Parents can also suffer from mental health disorders, of course. A parenting plan should account for any parental mental health conditions that affect the parent-child relationship. The first step in each case is an evaluation by a mental health professional. Since the circumstances can vary so widely, a parenting plan for a parent with a mental health disorder will have to address the needs of the specific family based upon the mental health professional’s evaluation.

Conclusion

As Dr. Hynan suggests, a parenting plan can benefit from reliance on scientific research about children and divorce to give children the best chance to adjust well following divorce. An effective parenting plan is also individually tailored to each family based on objective criteria. Combining both scientific research and evaluation of individual needs can help create the best parenting plan for each family. This book is a useful tool that can aid professionals who work with divorcing parties to develop parenting plans appropriate for each family: lawyers, mental health professionals, mediators, parenting coordinators, guardians ad litem, and judges.


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February 8, 2019

Morriah Horani Talks about Estate and Trust Litigation

Morriah Horani, a partner in the firm, is an experienced trial lawyer who handles disputes about child custody, division of property at divorce, and child and spousal support. Several years ago, she decided to expand her litigation practice to include resolving disputes arising out of estates and trusts. It seemed like a natural expansion of her family law practice as these cases often involve family members at war with each other. For this article Morriah answered some questions about her estate and trust litigation practice.

What is fiduciary litigation or estate and trust litigation?

This is an umbrella term that encompasses disputes about trusts or the estate of a deceased person. Litigation may involve issues stemming from a will, a beneficiary designation, a power of attorney, or a trust. A will dispute, for example, may be about whether a document purporting to be a will… MORE >

February 4, 2019

Marital Agreements and Beneficiary Designations—Sometimes Friends and Sometimes Foes

A marital agreement can take the form of a premarital agreement, a postmarital agreement, or a separation agreement, i.e., an agreement that settles property rights (and other issues) between parties who intend to divorce. A marital agreement may provide for the disposition of assets at death; it may require one or both parties to provide for the other or a child at death after divorce; or it may waive rights at death. When the terms of a marital agreement and a beneficiary designation conflict with each other, the law will either validate or annul the designation, depending on the jurisdiction, the type of asset, and the language of the marital agreement.

The District of Columbia, Virginia, and Maryland all have laws that revoke at divorce either the entire will or the portions benefitting a… MORE >

August 30, 2018

Changing Irrevocable Trusts

When is a door not a door? (Answer: When it is ajar.)

When is an irrevocable trust not irrevocable? Answer: Pretty much all the time. That is, perhaps the irrevocable trust cannot be revoked per se but, with a little creative thinking and cooperation, it may be possible to modify, decant, or terminate an irrevocable trust. This is not the kind of news that makes headlines (except in our newsletter), but great changes are afoot in trust planning.

In the past 18 years, more than 30 jurisdictions (including DC, MD, and VA) have enacted a version of the Uniform Trust Code, shifting trust law away from arcane rules buried in old court decisions and into the modern era. Many jurisdictions (again including DC, MD, and VA) have also revised laws that used to prohibit extremely long-term trusts,… MORE >

July 26, 2018

OPINION: Electronic Wills? Maybe, But Not Like This

B22-0169, the Electronic Signature Authorization Act of 2017, is pending before the DC Council, and it is dreadful.  The Uniform Law Commission (ULC), relevant sections of the DC Bar, and a number of DC Fellows of the American College of Trust and Estate Counsel (ACTEC) have submitted, formally or informally, written opposition to the bill.  We have it on good authority that this bill is unlikely to pass, and we hope that is the case.

Are electronic wills coming?  Of course they are.  Last year in Australia, an unsent text message was accepted for probate as someone’s last will and testament.  (Unsent!  With an emoji in it!)  In July of this year, the Michigan Court of Appeals affirmed a trial court decision to accept for… MORE >

July 19, 2018

Alimony Ends When Payor Spouse Retires . . . Or Does It?

Family lawyers are increasingly hearing from divorced clients who are getting ready to retire or have retired and who have a spousal support obligation or a right to receive support under a court order.  A court order may result from a trial or as part of a settlement agreement adopted by a court in the judgment of divorce.  Some payors think alimony payments automatically end at retirement, or that a court will decide to terminate payments at retirement as a matter of course, but this is not necessarily so.

Court-ordered spousal support terminates automatically only on the death of either party or—in Maryland and Virginia, but not the District—upon remarriage of the recipient.  When a court orders indefinite spousal support, i.e., support without a predetermined… MORE >