Understanding Temporary Parenting Plans

When it comes to diving headfirst into lengthy formal child custody proceedings, those on the inside tell me (from personal experience or observation) that this isn’t something that most people want to do right out of the gate.
Instead, we often find that it is far more common for parents to prefer to first give themselves some time to sort out what is actually best for them and, more importantly, what is best for their children. Asking for help (or not knowing where to even start) when it comes to co-parenting can be extremely difficult.
This is precisely where a temporary parenting agreement can come in handy.
What Is A Temporary Parenting Agreement?
A temporary parenting agreement is really just what it sounds like — an opportunity for parents to come together and agree upon a temporary plan to move forward with their kids’ well-being at the forefront of every decision.
Essentially, parents will work together and form an agreement that advances the best interests of the children during an interim period of time. In Virginia, there is no designated timeframe for how long this will be. Instead , it can extend until the permanent custody and visitation issues can be resolved by a court, referenced by the Family Court On-Line Reference Guide as well as the Virginia Code § 16.1-281.
When Are Temporary Parenting Agreements Used?
More often than not, we find that parents will need a temporary parenting agreement before the case goes to formal trial. They’re especially helpful for those who are caught in a particularly contentious situation, as this gives them room to regroup and refocus.
Think of it as the proverbial "time out" period. In this way, it’s only partially useful as a strategy for protecting your parental rights simply because it is not a permanent solution. Instead, it’s meant to provide parents with an opportunity to discuss and negotiate on paper that which may not be possible during less than civilized discussions.
It’s not uncommon, for example, for one parent to not feel that the children should be returning to school for the time being. Can an agreement’s primary focus be the education of your children? How about a parenting agreement focused on health care?

The Value of a Temporary Parenting Plan

When a family separates, one of the most important documents that should be put into place before parents disengage from one another is a temporary parenting agreement. Even though this is not a long-term agreement (as compared to a legally binding divorce), it is generally put in place to establish time-sharing and in some cases a temporary child support order until the final settlement agreement is reached. The benefits of a temporary parenting agreement vary on a case by case basis, but there are typically benefits and protections for both parents and children as well as the potential for less strain on court resources if the agreement can avoid unnecessary hearings.

Essential Elements for a Temporary Parenting Plan

When parents are unable to agree on a parenting plan for their children at the outset of their separation and divorce, or when they have reached an impasse in their negotiations, they often times seek the assistance of a judicial officer in Family Court. When your case is listed for a hearing on a scheduled date, the judge may advise you that you need to have the matter addressed much sooner than the scheduled date and will then recommend and/or require that you attend mediation or attend a PFA (Parenting Conference Assessment) to try to reach an agreement on custody and any related parenting issues. Once an agreement is reached, or if you agree at the PFA Conference that you are ready for a hearing, you can then proceed into Court to have your agreement placed on the record in a Consent Order, or you can ask for the Court to enter an Order that is in the best interests of the children based on the evidence presented to the Court. In the interim, while you are separated, it is important that you have some safeguards in place to protect the bonds between you and your children as well as to protect your access to your children from the other parent during this difficult time.
Although each case is different, there are certain key elements that should be considered and addressed in a Temporary Custody/Parenting Plan Agreement. These elements include:
A. CUSTODY SCHEDULE:

• Middle of the week overnights in addition to weekends.
• Equal weekends.
• Beginning times & end time for each contact period.
• School year schedule, summer schedule, & holiday schedule.
• Transportation arrangements.

B. DECISION MAKING COMMON AREAS:

• Religion
• Education
• Medical
• Extracurricular Activities
• Vacations/Summer Plans

C. SCHEDULE FOR EXCHANGE OF THE CHILDREN:

• Location of Exchange
• Makeup Times
• Transportation

D. OTHER PROVISIONS:

• Duties concerning the care of the minor Children
• Income tax deductions
• To School and back by – time preferable by both
• Supervision for drop off, pick ability to stay
• Details on Child Expenses

E. COMMUNICATION:
The parties understand that communication is essential for the development of a positive relationship between the parties and their children and agree that they shall make every effort to immediately communicate with each other in writing, on the phone, or in person if appropriate, regarding issues affecting their children. Further, it is agreed that email communication seems to be the most open and easy method of communication between the parties and that reasonable communications by email shall be mutual.
F. HEALTH INSURANCE:
The parties agree that the cost of health insurance for the children shall be divided as follows:
Mom – $_______________/week – [Total Cost per week $___________] Dad – $_______________/week – [Total Cost per week $____________]
I am often asked by Clients about what are the most important key elements that should be included in a Temporary Parenting Agreement. In the cases that I handle, these are the most common key elements that I suggest my Clients (and opposing counsel) consider and attempt to address in a Temporary Custody Plan.

Temporary Parenting Plans: How to Write One

When the court refers to a party as a trustee, that party has a duty to consider the needs of his/her children ahead of his/her own needs. As such, a temporary parenting agreement will generally focus on the children first. However, it must also consider the needs of both parents. A temporary parenting agreement will include the following: It is always best to formulate an agreement prior to going to court. This provides the opportunity to take the time necessary to thoughtfully address issues. Generally speaking, once an agenda has been agreed to and notice of hearing filed, there is a deadline by which it must be returned. Most counties allow for a relatively short time frame – 10-14 days. Generally speaking, negotiation is the best method for drafting a temporary parenting agreement and resolving any disputes that might arise along the way. Avoid making the mistake of shooting from the hip or trying to "one up" the other party. Consider including the following items in your temporary parenting agreement:
Negotiating an agreement is the best possible method when attempting to resolve the outstanding issues of parenting time. However, there are circumstances when issues are contentious and would not be resolved unless addressed by a judge. In these cases, a court date is necessary to obtain a temporary parenting order by default. In some counties, a hearing officer is available for emergencies. More often than not, an emergency motion will need prior approval and/or scheduling with the trial judge who has the case. Depending on the count, that might require a follow-up hearing. Once a parenting agreement is drafted, it must be signed and received by the court thirty (30) days prior to the trial date. In the absence of the agreement, a hearing will be required to determine the temporary parenting plan.

Legal Standard and Enforceability

Temporary parenting agreements in a divorce or separation case create the rules and guidelines for how the couple and any legal guardians like grandparents will share the responsibility of caring for their children on a day-to-day basis. This also sets out who gets the children during which part of the week and how school, medical, and financial issues will be addressed.
In many cases, a temporary parenting agreement may be written to reflect how the family has operated prior to separation. However, this is not always possible if the separation was an extremely disruptive experience. A temporary agreement starts with an individual who is committed to maintaining a routine that is close to their normal schedule as possible .
Agreements signed by the couple are binding for the duration of the divorce or separation. It now becomes an order of the court with which they both must comply. Individuals struggling with adhering to the agreement may be called before the judge to explain their lack of compliance. A primary parent may seek modification of the agreement because circumstances have changed.
The court will take the best interests of the children into account and so too should the parents. Clarifying and simplifying the custody arrangement during a separation allows everyone to adjust to the new norm and help plan for their shared future. An agreement that is acceptable to all parties is likely to be viewed more favorably by the judge presiding over the divorce.

Amending or Ending a Temporary Parenting Plan

The purpose of temporary orders is to create some stability in the parties lives and for their children while they are going through the divorce process. However, circumstances change. If the parties agree in writing to modify a provision of a TPA it may be modified without judicial approval. If the parties cannot agree and need the Court to intervene, it may be done prior to a final order with a motion or after a final order with a post decree motion. In the event the TPA covers possession of the marital home, it may terminate automatically upon the sale or refinance of the home. In determining whether a modification is necessary, the factors that are considered are the same as those that necessitated the initial order, however the burden of proof is on the party seeking the change. The standard is higher for a post decree modification and the party seeking the modification must show a substantial change in circumstances since entry of the final order and that the modification would be in the best interest of the children. This is also consistent with the standard needed to modify a final custody order after a divorce has been finalized. In other words, the court will not modify or terminate a TPA unless there has been a substantial change in circumstances and a modification would be in the best interest of the child.

Challenges with Temporary Parenting Plans

Common challenges when creating or following a temporary parenting agreement as well as strategies for overcoming those challenges to ensure the temporary parenting agreement does its job to the fullest capacity.
One of the most common issues we see is communication – about anything and everything. While a temporary parenting agreement is a legally binding document, parents are often not as prompt about notifying one another of changes that may affect the agreement. Which brings us to:
The timing for many things in your temporary parenting plan may be considered arbitrary to a point (for example, which week it is, or who is on parent duty that night). But keeping to this schedule ensures that both you as parents and your children as children have a clear understanding of what is going to happen when . A solution that we recommend is to install a family calendar in a place where each parent has access to. The family calendar should include school events, parties, vacations, and even general day-to-day activities.
Also remember that, unless otherwise stated, your temporary parenting agreement will expire either at the start of mediation or at the completion of your divorce. Most courts will not sign off on a temporary parenting agreement as a parenting plan. What that means is that once a decision enters the court system, the judges will consider the situation and new agreements from a different point of view, and sometimes reach judgments that differ from what other, previously agreed decisions were made. Make sure all agreements are stated clearly on the record, so that no surprises occur after the temporary agreement has ended.