Can we Temporarily Change our Parenting Plan by Verbal Agreement Until Quarantine is Over?

Question:

Can we temporarily change our parenting plan by verbal agreement until quarantine is over?

Answer:

I do not practice law in your state. Therefore, I cannot inform you as to the specific laws of your state, but I can provide you with general tips for this sort of issue.

I am licensed to practice law in Tennessee, and each state jurisdiction has varying child support laws and regulations. You should consult with an attorney licensed to practice law in your state for a comprehensive analysis of your specific circumstances. 

While each state jurisdiction has different child custody laws, it almost is never a good idea to enter into a temporary modification of your parenting plan by verbal agreement.

In most parenting plans that I draft, I will include a clause that states, “The parents may deviate from the parenting schedule as is necessary, but any such deviations shall be in writing between the parties.”

This clause generally protects parents who do occasionally deviate from their parenting schedules. However, I also recommend that if you do deviate from the parenting plan, the written agreement to deviate should contain language that clearly indicates the dates/times of the deviation(s), why the deviation is occurring, and whether any lost time by a parent will be made up in the future.

If you do want make-up parenting time for lost time, it is smart to put the dates/times for the make-up parenting time in the original deviation agreement.  I cannot count the number of times I have heard of a parent not receiving reciprocity from the other parent when the make-up parenting time is not put in writing. Generally, text messages and emails will suffice as “in writing,” but you need to make sure there is a visible date and visible way of identifying each party, i.e. email address, phone number.

Some parenting plans do not contain the language, “The parents may deviate from the parenting schedule as is necessary, but any such deviations shall be in writing between the parties.”

This language is important because if the parenting plan is approved by a judge, then the language permitting the informal deviations is also part of the court’s order. Without such a clause, it becomes more precarious as to whether a parent may deviate from a parenting plan without an actual subsequent court order approving of the deviation.  If your parenting plan does not include a clause permitting such informal temporary modifications or “deviations,” then it is more likely that you will need to consider filing a petition to modify parenting plan.

The process of modifying the parenting plan can be simple if the opposing party agrees, or it can be a longer process if it becomes contested. In Tennessee, courts will not consider simple motions to temporarily modifying parenting plans unless failure to temporarily modify the parenting plan would result in imminent harm to a child.

You should consult an attorney in your state regarding whether a simple temporary motion is possible.

Even if your parenting plan does not have a clause explicitly permitting temporary modifications or deviations, your state jurisdiction still may allow informal deviations. However, in that scenario, you must absolutely be sure to reduce any deviations to writing as outlined above, as it will be crucial evidence should the opposing party ever allege that you failed to follow the terms of the parenting plan. 

The guidance herein is strictly meant to apply to parenting schedules, holiday, and summer schedules, and it should not be construed to apply to child support. Child support modifications must be entered by court order, and an informal agreement will not be honored by a court.

Again, please keep in mind that every state is different, and it is important to consult an attorney in your state to determine the best path forward in modifying your parenting time. Our firm is scheduling virtual and phone consultations amid the COVID-19 pandemic.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Tennessee lawyer Adam Zanetis, contact Cordell & Cordell.