"Can We Swap Days?" Making Informal Changes To The Custody Schedule

He wants to take the kids this Saturday, not next.  She wants to pick up the kids an hour early.  He has a business engagement and cannot take the children on Wednesday night.  Life is busy, schedules change and the question is posed:  “Can we change the visitation/custodial schedule this week?” 

You can but should you?

Often, it is one parent, not both, who repeatedly seeks changes to the visitation/custodial schedule.  The parent requesting the changes may view the proposed changes as reasonable and, perhaps, necessary given work or other commitments.  The parent of whom the changes are being requested may view them as hallmark behavior of a spouse who does not prioritize the children or respect the non-requesting parent’s time and ability to plan activities for the children in reliance on the visitation/custodial schedule. Sometimes, one finds one parent asking the other parent to take the children on his/her parenting time expecting to “swap” future days but the swap never occurs.

If the non-requesting parent agrees to the change, the following may occur:

            1.         The requesting parent comes to view changes to the schedule as the norm and an expectation develops that all reasonable requests for changes should be granted.  Thus, there are more requested changes and the visitation/custodial schedule ceases to be much of a schedule at all because it is constantly in flux.

            2.         There is increased communication between the spouses as each change to the schedule requires multiple contacts regarding the new date/time of the exchange and related logistical arrangements.

            3.         A dispute develops as to how many requests to change the schedule were made over a period of time; how many times the visitation/custodial schedule was actually changed; and how many times the non-requesting parent objected to or refused to grant the requested changes.  These issues are often raised in the context of broader issues.  For example, the non-requesting parent may argue that the requesting parent cannot adhere to the visitation/custodial schedule, has not taken advantage of the time with the children afforded to him/her under the schedule, and, in the case of a temporary order pending trial, that the court should not make a final order implementing the schedule as part of a judgment.   

Depending on the circumstances, it may prove beneficial to keep close track of the requested changes and/or confirm them in writing. It is very difficult to revisit the calendar months after weekends, days or even hours may have been modified or “swapped” and recall with any accuracy that which actually occurred.  Further, even if one could recreate a timeline of events, the opposing party may recall events quite differently. 

In order to avoid any evidentiary problems associated with the admissibility of one or more emails, a log may be maintained with each requested change recorded, including the date that the change was requested; the date that the change was granted; and the date that the change actually occurred.  All entries should be made at or near the time of the event by the person who is going to testify about the events and exclude any non-factual statements and inflammatory comments. 

If the non-requesting parent refuses to make the change(s), he or she may be branded as “inflexible” or “controlling” or “unreasonable” which can be highly damaging in a custody case.  The non-requesting party may believe that the schedule should not be changed in order to convenience the other party because the change itself is an inconvenience to the non-requesting party.  The court may or may not agree.  It is the totality of the circumstances which must be considered including but not limited to the reason for the change, the advance notice given for the requested change, etc. 

How can you plan proactively for this scenario?  Some parties build into their visitation/custodial schedules a limitation on the number of times that a change to the schedule can be requested.  It may be three (3) times a year or more or less.  The number of days of advance notice may also be specified.  All of these issues can be “spelled out” in an effort to avoid future conflict.

Visitation/custodial schedules should be specific and definite.  They should be followed with exceptions allowed.  As with all matters in in the Probate and Family Court reasonableness should govern and whether an act or decision is reasonable depends on the then-existing facts and circumstances.

This post is provided for general informational purposes only and does not constitute legal advice or the creation of an attorney-client relationship.