In recent news, Lisa Marie Presley’s children were reportedly barred from attending the late Elvis Presley’s 85th birthday party at Graceland in Memphis, TN. Per this report, the custodial arrangement prohibited the children from leaving California without the consent of both parties, and the father refused to give consent. It is not known whether the children were ultimately allowed to attend the celebration with their mother, who was Elvis’s only child, causing some to consider child custody laws and their own agreements. 

Similar scenarios can occur with less star-studded couples. Perhaps you’ve spent a year-and-a-half fighting with your ex-spouse about custody and parenting time with your children. You’ve been through a grueling court process or a marathon mediation, and you finally have custody papers—a Parenting Plan Order to guide you, your ex, and the children until they turn 18. You finally feel you can breathe because the uncertainty is gone. Planning will be much easier. Then, you get a call from your ex: “We won a trip to Disney World®, but the return flight is on Junior’s birthday, which you get during odd-numbered years. Will you please give up your birthday time so we can take this trip?”

What Are Your Options? 

Here are a few:

• “No, by the papers, I get the children on their birthdays in odd-numbered years. I won’t agree.”
• “Yes, but you have to give me three weekends in a row to make up for missing the birthday.”
• “Yes, have fun at Disney. I’m sure you’ll give me the same consideration when I have something come up during your time.”

These are all equally legal options, but are they all equally valid? It depends on what your desired outcomes are in the long run.

If you believe that the Parenting Plan is the best arrangement, and you don’t want to deviate from it, then, as counter-intuitive as it may seem, varying from “the papers” for special occasions may be the key to retaining the schedule you like. If you maintain a rigid posture and demand strict adherence to the Parenting Plan, you risk appearing unreasonable to a judge in a future modification action and alienating your children by depriving them of an opportunity that does not come along every day.  When they reach an age where their wishes are given greater consideration, they may remember the times that you did not let them have fun with the other parent because “the papers” said you didn’t have to.

While sticking to “the papers” on one occasion probably won’t be enough to trigger a modification of custody, if it occurs repeatedly in such a way that paints you as a petty dictator instead of a reasonable parent looking out for their child’s best interests, it could form the basis for a modification of custody and parenting time. 

Why Is It Important to Deviate for Some Occasions? 

How can this be, you may wonder, if the judge signed the Parenting Plan?  Wouldn’t the judge expect both sides to follow it to the letter?  How could you lose parenting time in the future just for following the Parenting Plan to the letter? 

Like much of family law, the answer is: it’s complicated. Parenting Plans are court orders and, as such, violating them carries risks. That’s why it may not be wise to make that trip to Disney World if your ex-spouse refuses to give up their birthday parenting time.  However, the reality of Parenting Plans is that they can become outdated as circumstances change. 

As much as we may want to keep them little, children are going to grow and, hopefully, become independent of both of their parents. As they undergo this journey, schedules can become cumbersome, especially as your kids become more involved in extra-curricular activities. 

A parent who has court-ordered parenting time during baseball practice does not have any obligation to take the child to practice, but is it in the child’s interest to keep them home instead of taking them to practice? If they’re struggling in school, perhaps yes. What if they’re a top student and really like baseball? What if baseball is the only sport in which they participate? With each additional fact, the question becomes murkier, and the risks of strictly following “the papers” become greater if the other parent decides to bring the matter before the court in a custody and parenting time modification action. An unwillingness to be flexible can be used as a factor in determining whether the current custodial arrangement is in the best interests of the children—which is the paramount consideration in any custody determination between parents.

Child Support Modifications 

Having said all that, there is one scenario in which consistently and repeatedly varying from the Parenting Plan can cause problems: child support modifications. Georgia law limits the filing these modifications to every two years except in certain circumstances. One example is when a non-custodial parent has failed to exercise court-ordered visitation. Another circumstance is when a non-custodial parent has exercised a greater amount of visitation than was provided in the court order.  

Additionally, when a custodial parent prevails in an upward modification of child support based upon the non-custodial parent's failure to be available and willing to exercise court-ordered visitation, attorney's fees and expenses of litigation shall be awarded to the custodial parent.  

This presents a conundrum to a parent who is being asked to be flexible about the Parenting Plan. Is a non-custodial parent’s flexibility going to be turned around on them to be a “failure to be available to exercise visitation”? Additionally, is a custodial parent’s flexibility going to be turned around on them to be a dereliction of their parental responsibilities? 

Again, it’s complicated; it’s not always easy to know which way to go when being asked to vary from “the papers.” That’s where an experienced family law attorney can counsel and advise you with an eye toward avoiding, or preparing for, future litigation.

If you are interested in modifying your Parenting Plan, either formally or informally, turn to NMS Law Firm – Nina M. Svoren LLC to determine how you should go about doing so. Located in Toccoa, this Northeast Georgia practice is backed by more than 27 years of experience in child custody law. By focusing on family law over the course of her career, attorney Nina M. Svoren has become well-versed in everything from divorce and alimony to custody and child support. To discuss your child custody law dispute, reach out on her website or call (706) 282-4696.