Parenting Plans – what you need to know!
What is a parenting plan?
When you separate you are suddenly faced with a whole new vocabulary – people will throw around terms such as “Parenting Plans”, “Court Orders”, “Consent Orders”, “Parenting agreements” and you as a newly separated parent are supposed to overnight have the knowledge to know the difference between each of these and the insight to know which is right for you. Unfortunately, very few of us ever get the crystal ball to impart its knowledge on us when we need it, nor do we get the power to know what we should do for the future.
To help, I thought I would share some of my knowledge with you – I want to give you some insight so you can start to think about what is right for you – what is it that your family needs? I by no means have a crystal ball and I cannot tell you what you should do or what is right for you but what I want to do is to give you something to think about, to start formulating the right questions you need to ask a lawyer so you know that when it comes time to make a decision you are making the best decision you can based on the information and facts in front of you. That, at the end of the day, is all you can do.
So lets start with a simple difference to help you decipher between the options. Firstly, a court order and consent order are essentially the same thing. A parenting plan and parenting agreement – depending on the context may also be thrown around to mean the same thing however make note that there are strict guidelines as to what constitutes a parenting plan – anything outside of the guidelines (and which is not a court order) would constitute a parenting agreement. An agreement in my view is simply that – something that the two of you agree on but which has no power to be enforced or considered by anyone else.
So what is a parenting plan? It is an agreement which is made in writing between the parents of the child, signed and dated and which contains matters relating to the daily care of the child. The important points to take from the above definition is this:
It has to relate to the care of the child;
It has to be in writing, signed and dated;
It has to be between the parents of the child;
A court order on the other hand, is an order made by the Court. It may be made by consent (these are known as consent orders) or it may be made by a Judge following a hearing. Either way, the orders have been made by the Court.
The biggest difference between these two options is simple. A court order is enforceable however a parenting plan is not. The court whilst it must have regard to any parenting plan in place it is not obliged to follow the parenting plan or make orders to enforce what was in the parenting plan.
So now you know the difference between the two you can start to think about what is right for you.
Is a parenting plan right for you?
Bearing in mind the main difference between a parenting plan and order some of you may be thinking that the answer is simple – why wouldn’t you go with an order to ensure that you have the ability to enforce it? On the face of it, that is a logical conclusion to draw. Unfortunately though, it isn’t always that simple.
Firstly, when a final order is made (i.e. an order after a final hearing or consent orders on a final basis) there is a presumption that those orders will remain in place until your children turn 18. For some of you, that may be some time off. Once final orders are made, there must be a significant change in circumstances or both parties must consent to have the orders are varied. Depending on your scenario this may be difficult.
Conversely a parenting plan offers parents the flexibility to change and alter the agreement as their circumstances change or, ask the court to make orders if you cannot reach a new agreement.
If you do have orders, you are of course able to agree between each other to change the terms of the order. This might just be a verbal one off agreement or you may want to draw up a parenting plan to formalise the terms of the change if it is something that will be on an ongoing basis. Be careful though, any parenting plan entered into after Court Orders are made will trump the prior orders. To be clear if you have orders then enter into a parenting plan changing the terms of those orders, you cannot at a later date seek to enforce the original terms of the court orders. If at any time you are thinking about entering into a new agreement after orders have been made, we encourage you to seek fresh independent legal advice to clarify your obligations and rights at that time. Whilst it may cost you money to speak to someone then, it may save you a lot of money in the future.
Lorrie Brook is the creator of www.ourchildren.com.au, Australia’s first website offering software which helps parents manage shared custody peacefully and protects their kids from being used as messengers. The information contained in this article is of general nature only. You should not act on the information contained within this post without first seeking independent legal advice from a qualified legal practitioner.
