Spring/Summer 2016: Unique Family Law Provisions When You’re Simply Stuck

by Brian McLaughlin and Wendy Hickey

Have you ever been stuck in court on a Monday morning with not enough coffee, and just can’t think of that provision that you need after the judge has told you to go in the hallway? This article will attempt to provide practitioners with helpful suggestions on how to think your way through sticky or unconventional situations.

These suggestions have been broken down into three basic categories: travel, activities, and college costs.

Travel

Issues relating to travel with the children encompass a wide array of aspects, including obtaining/renewring a passport, travel expenses themselves, and airline policies. In order to obtain a passport for a minor child, both parents must sign the required form. This signature can often be used as a power play by one parent against the other. The U.S. Department of State’s Office states that “both parents/guardians must appear in person with the child and provide consent, authorizing passport issuance to the child…If the child only has one parent/guardian, evidence of sole authority to apply for the child must be submitted with the application in the form of a…court order granting sole legal custody to the applying parent (unless child’s travel is restricted by that order)”.1 It is particularly relevant for a practitioner to be aware of this requirement if the client is first-generation and might want to stay connected with loved ones in other countries. Your client may have a difficult time navigating the restrictions of the court.

The first step in crafting a successful provision is to alleviate the non-traveling parent’s concerns. This can be done by requiring the traveling parent to provide hotel information, itinerary, and means of communication, all no later than a week before traveling, or sooner if all parties agree and can comply. A popular means of communication is FaceTime or Skype however, as with any technology, there is a possibility of failure. An alternative form of communication should be delineated in the agreement, such as the good old fashioned telephone.2

The second major concern that non-traveling parents may have relates to the length of the trip. I have had success defining the length of the trip to ensure that the child is not removed from the Commonwealth for an extended period of time without the non-traveling parent’s consent, or that the child will not miss any school without the other parent’s advance consent. Another point of concern would be lost time due to jet lag. This concern could be alleviated by adding makeup days to the receiving parent or altering the parenting time schedule for a short period of time either before or after such a trip. The practitioner may want to determine how long it takes to recover from jet lag as a result of time differences.

The next common issue is related to enforceability. Any agreement is worthless unless it is enforceable. If there is foreign travel involved, the attorney would want to make sure and check that the destination is a Hague signatory, and if not, the parties would have to consent to jurisdiction of the destination country.3 It is also helpful to know, regardless of whether they are a signatory, which countries have a history of returning children to the USA under the Hague Convention.

Whether or not the proposed travel is to a signatory country, there are things that can be done to ensure the return of a child from a foreign destination. For example, did you know that “kidnapping insurance” is available for purchase? Some parties require posting of a bond through a bank which would be cashed in and used to pay for a Hague case if the traveling parent fails to return with the child as planned. Other parties give the non-traveling parent a deed to real estate to be held in escrow and only recorded in the event of a failure to return.

In terms of enforceability, if the traveling parent intends to go to a non-signatory country, often times it is worth hiring a lawyer in that country to seek to obtain a mirror image order which would make the parties’ agreement enforceable in that foreign jurisdiction.

The final point related to a successful travel provision concerns older children traveling alone, and which safety provisions need to be put in place for safe passage. Each airline has its own protocol and procedures. Typically, a flight attendant or airport staff will meet the child at the gate and accompany the child to and from the jet way to the receiving parent. Most airlines also require children ages five to seven to have direct, rather than connecting, flights. There is usually a fee associated for unaccompanied minors, which can vary greatly.4 As a practitioner, you want to obtain as much information as you can in related to travel and unanticipated expenses, and clearly provide for how those costs will be allocated between the parties, because they could be potential hot button issues in any negotiation.

Activities

The next area where you may need to get creative is related to child activities. Child activities often have three contentious areas: who decides what the activities will be, who is paying for it, and on whose parenting time that activity is going to occur. Generally, each parent has favored activities which they would like their child to do or continue to do. It is important as a practitioner to make sure that you’re aware of all the child’s activities, the time commitments, equipment involved, and how the parents view this activity in their family model. For example, does the entire family identify with this activity, or is one parent more invested? A good practice is to provide that no advance consent is required for activities that are consistent with historical practice.

The first big hurdle is who is going to pay for the activities. The cost of children’s sports has increased dramatically, with the average American family spending approximately $670 per year, per child.5  It is important as a practitioner to be aware of the costs of any of the activities that the children participate in, and to verify the costs of each activity independently so that your client does not agree to share an expense and is then surprised by the cost. This can be particularly difficult if you’re not familiar with the economics of a particular activity or sport. It is important to develop a list of experts who you can call to quickly gather information. For example, hockey can cost up to $5,000 a year in skating and clinics, not to mention the added cost of goalie equipment should the child decide to be a goalie, things you might not know if you were unfamiliar with the activity. You want to be clear about who is paying for what activity, and if there is a cap related to children’s’ expenses. You may also want to define what an activity is or is not to avoid possible contempt. It is important to define what necessary equipment might be for a particular activity so there is no argument about paying for those items. For example, a riding helmet is a necessary piece of equipment for a child taking horseback riding lessons – leasing and maintaining a pony is not necessarily.

The final issue to consider would be ensuring that the child gets to the selected activity, and that each parent has sanctioned the selected activity as appropriate for the child. Parents might also want to specify that participation in a given activity is contingent on maintaining a certain grade point average in school. If there is disagreement related to appropriate activities, a common solution is to do activities of each parent’s choosing on that parent’s time. The major concern with the use of this type of language is related to what happens if there are unanticipated scheduling changes that place one parent in the uncomfortable position of taking a child to a non-preferred activity during his or her parenting time. The practitioner needs to be aware to craft language so that the child gets to his or her activity as smoothly as possible.

College Expenses

A final big elephant in the room is related to college costs. College costs have escalated greatly, with the average college cost being more than $46,000 depending on whether the college is a private or public institution.6 There is standard language which most practitioners put in their agreements which states that both parties will cooperate when filling out the FAFSA application. However certain judges have definite positions regarding college. This is where the term “know your judge” comes in handy. If you do not know your judge’s position on college expenses, ask colleagues before your hearing. The standard position is that the student pays 1/3, and that each parent pays 1/3. Some judges prefer to restrict college spending to one-half the cost of UMASS Amherst. It goes without saying that before discussing the issue of college costs, the attorney needs to look at the relative positions of the parties. However, you can get creative with drafting language. You should also make sure that you are fully informed about the 529 or any other funds earmarked by the parties for college at the time of divorce and how those will be allocated.

It is important to include in any agreement a detailed breakdown of college expenses. The definitions section can extend several paragraphs, but is intended to provide clarity as to who is paying for what, so that everyone knows what a college expense is. You want to include everything from the standard tuition, room and board to things like providing the child with a laptop and cell phone, travel to and from school a certain number of times per year, pre-admission testing fees and tutoring for those exams if necessary. You can even include a provision about sharing the cost of travel to visit colleges as the child is selecting a school – however, expect that the parent traveling with the child ought to pay his/her own travel expense – it is not a free vacation.

It is critical to understand the implications of a divorce on financial aid. There are financial planners who specialize in college costs financial planning, such as Scott Weingold, Managing Partner of College Planning Network LLC, who says that many divorced parents make mistakes in the financial aid process that end up costing them thousands of dollars of added college costs. The biggest mistake he sees is families ‘over-reporting’ income and assets – and therefore raising the family’s Expected Family Contribution. They do this by listing the assets and income of ‘all’ parents and step-parents – even those who the child doesn’t live with the majority of the year.

Consider telling your client to meet with a professional before entering into any agreement related to college costs if standard language doesn’t cover their unique situation. The last piece related to college costs is that it can be difficult to anticipate college costs for young children, since it is impossible to look into the crystal ball.

Hopefully, this article has provided some mind triggers, so that one is not paralyzed in the hallway, and will at the very least provide some guidance and things to think about when drafting separation agreements. Of course the best thing to do is ask the judge to set a status conference so that you do not have to try to prepare a separation agreement in the hallway of the courthouse.

[1]  See https://travel.state.gov/content/passports/en/passports/under-16.html
[2]  This leads to another question of who is to purchase and set up telephone cards.
[3]  https://travel.state.gov/content/childabduction/en/country/hague-party-countries.html
[4]  http://thepointsguy.com/2014/09/unaccompanied-minors-tips-to-help-kids-fly-solo-safely/
[5]  http://www.huffingtonpost.com/visualnewscom/high-cost-of-youth-sports_b_3469012.html
[6]  http://www.collegedata.com/cs/content/content_payarticle_tmpl.jhtml?articleId=10064