Useless 'Aspirational' language and a Custody or Visitation Agreement

Since most family-law disputes end with a settlement, which is essentially a contract between the parties affecting their rights to assets, cash flow, time with children, parenting decisions and moving out of state with children, it's important to know that there are basically two types of paragraphs put into these 'Marital Settlement Agreements' or 'Agreed Parenting Plans' --  (1) aspirational  and (2) enforceable.

"Aspirational" paragraphs (my term for them) are couched in lofty-sounding phrases that sound good, that seem to require certain behavior from the parties, or that seem to prohibit improper behavior.  Behavior in the presence of the children, cooperation with the other parent, but are actually just an illusion -- since no one can precisely define what is required or prohibited.

Here's an example of this type of bad, 'aspirational' or feel-good language:

The parties shall cooperate in the selection, enrollment and

scheduling of each child in any additional extracurricular activities,

keeping in mind each child's age and interests. The expressed

wishes of a child with respect to participation in extracurricular

activities, including organized sports, shall be weighed and each

parent agrees not to unreasonably withhold consent to a child's

participation in extracurricular activities or organized sports in

which s/he desires to participate.

Sounds good, right?  But, it's absolutely useless in actual practice, and leads to expensive, time- and money-wasting disputes.  Can anyone say exactly what this paragraph requires a parent to do, or what behavior is prohibited?  Of course not.  Disagreements over its meaning are almost inevitable.   Language like this has no business being included in any agreement or court order.

Here's another bad, 'aspirational' paragraph that an attorney proposed in one of my cases:

Phone Communication With The Children: Each parent shall, at all times,

have reasonable telephone, text and electronic access to the children

during the other parent’s parenting time from 8:00 a.m. until 8:00 p.m.

Neither parent shall interfere with the other party’s communication with

the children.

Again, lofty-sounding language that does not clearly spell out rights, obligations or duties.  Can anyone say what 'reasonable telephone, text and electronic access to the children' means?  Can anyone say what it means to 'interfere with the other party's communication with the children?'  Of course not.  This language cannot be effectively enforced, leads to disagreements, and is a waste of space.  

Now let's talk about what does work.

"Enforceable" paragraphs are those that could (could) form the basis of a 'Petition for Rule to Show Cause' (a petition asking the court to force the other party to follow a court order.)  If a paragraph or sentence in a court order is not very clear and understandable in only one way, the contempt-of-court process does not work properly.  Any language in any court order should make it very clear to both parties, and to a judge later reading it, what behavior is required or prohibited.

I sometimes use the example of the speed-limit signs on the highway.  They say 'Speed Limit 65 MPH," not "Don't drive too fast."  It's very clear what the requirements of the law are -- no question about it.  It's easy to determine when there's been a violation.  The language of family-law court orders should be just as clear.

An example of good, enforceable language:

On Mondays, Wednesdays, Thursdays and Saturdays, the parent 

in possession of the child shall initiate a phone call to the other parent 

between 7:00 p.m. and 7:30 p.m. and place the child on the line 

to speak with that parent.

Now there's a very-definite and requirement, and one that can be documented.  If there's an incoming call to the absent parent between 7 and 7:30 p.m. on those days, the order is being followed.  If not, there is a basis for seeking court enforcement and possibly penalties.

Another example of good, enforceable language related to children's activities:

Either parent may schedule the child for sports, events or activities 

during his or her own parenting time, but may not schedule the child 

for activities occurring during the other parent's parenting time 

without the written consent of the other parent.  

If a parent schedules an activity, unless the other parent agrees 

in writing to pay part of the cost, the parent scheduling 

the activity shall pay 100% of the cost of that activity.

Now you've got language that clearly spells out the rights and obligations of each parent with regard to a specific, often-contentious issue:  How to allow the child to participate in sports and activities without having it be a constant source of argument.  How to prevent one parent from stepping all over the other parent's precious and limited parenting time by over-scheduling sports and activities.

= = = = 

If you're looking at a proposed Parenting Agreement that is over 20 pages long, it's likely to be larded with 'aspirational' (useless) language and conflicting paragraphs.  If you'd like to meet for an analysis of your situation, I would welcome your call to my cell #, seven days/week:  312-493-4241.

- Kevin J.

www.divorce.nu