For ease of answering this, we’re just going to say that Mom is the custodial parent and Dad is the non-custodial parent because that’s the more common scenario. It can go both ways though of course. We’re also going to say that Dad has an every other weekend and maybe a dinner visit or two during the week.
Once there is a parenting schedule issued through a custody order – whether that happens through the parties coming to an agreement that gets entered or the Judge issues an order or Judgment after a contested hearing or trial, that parenting plan is considered the blueprint of what the parents are expected to follow. In other words, it is what is to be followed if there is no agreement otherwise.
Parents always have the ability to agree to change terms within the custody order at any time – whether that be temporarily or permanently. In fact, a lot of attorneys will include language in the agreement that the parties may modify the terms of this agreement in an advanced writing. (Getting things in writing is important so that if there’s a later disagreement, you can see exactly what was agreed upon).
Now there may be reasons Dads cannot share parenting time equally – it may be due to that parent’s work schedule or the distance they live from where the custodial parent lives. It may also be because Mom was adamant that she has primary custody and Dad did not have the mental energy or the money to fight her. Especially where those feelings are coupled with an underlying belief that it is a pointless fight because Moms always get primary custody. Of course, there may be safety reasons that restrict a parent’s ability to share physical custody of the child, but I’m not focusing on those here. I’m focusing on Dads who are considered to be at least fairly capable and willing to care for their children.
I have even seen dads agree to a lower amount of parenting time than what they really want based on the fact they are told they can just agree to more parenting time later, like what we just discussed a second ago.
So, here’s our problem and I think what leads to a lot of confrontation and this question. When Mom has more time than Dad – If he agrees to him having more time because he wants it, but Mom says no – This means that Mom is in the driver’s seat because unless she agrees, Dad gets nothing extra.
So this is where this underlying question comes from – Let’s look at this scenario – Dad has his base parenting time of every other weekend – he gets a day off of work and says to mom, “Hey, I’d like to take the kids while I’m not working.” Mom says, “No, it’s not your parenting day, so you’re not getting them extra time.” Then Dad says, “The custody order is the minimum amount of time I get, not the maximum.” (See where we are now?) Then Mom says, “You have your parenting time. I have mine. Follow the Court Order.”
And there’s the problem. If Dad does not have any significant safety concerns in regard to their ability to care for their kids, then why can’t he have extra time if he’s able to? Why can’t your kids have some additional time with their father? What is the underlying reason Mom says no? Is it because Dad doesn’t give enough notice? – Dad, give enough notice. Is it because Dad doesn’t stay consistent with the parenting time he has so Mom feels as though she shouldn’t have to bend over and do whatever Dad wants when he doesn’t do what he’s supposed to? Dad – do what you’re supposed to. Is it because Mom sees her parenting time as her property that she’s not willing to share with Dad? Mom – it’s your kids’ parenting time – they’re not your property – let Dad have some extra time if he’s able to.
There could be a million other reasons why Mom wants to stick to the base parenting schedule – try to figure out what the underlying reason is. If Dad’s schedule opens up and Mom consistently denies any additional time, perhaps a modification is appropriate.
So, to answer the underlying question – yes, in some ways, Dad’s base parenting time is just the minimum and if he can have additional time, then it should be okay. However, if there’s a disagreement, then that’s why the minimum parenting time is laid out – because that’s the amount you are guaranteed.
If you want to guarantee extra time, put language in your agreement that includes “consent not to be unreasonably withheld” – then at least there needs to be a valid reason if Mom says no. But Moms – Dads shouldn’t have to beg to spend more time with their kids. They’re the children’s parents too and as long as they are capable parents (which if they have every other weekend, they likely fall within this category), don’t just say no without a good reason.
In other words, put your kids first no matter what your parenting schedule says.
If you are seeking a parenting schedule, make sure that you hire a custody attorney who understands the ins and outs of what is necessary to protect your relationship with your children. At O’Connor Family Law, we know exactly how to do that. Call us.