By: Stephen J. Plog
Custody attorneys are keenly aware of the major and minor issues to be dealt with in divorce or custody cases. Of course, the major issues primarily relate to legal custody (parental responsibility regarding the making of major decisions), visitation (parenting time), and primary residential custody. Though the core of any child-related litigation centers around these major issues, there is an array of lesser issues which will also need to be addressed, such as obtaining orders regarding transportation for parenting time or getting specific holiday schedules in place.
After the more substantive orders are arrived at, parties and their attorneys are left with determining what I will term the “housekeeping” items. Housekeeping items can include simplistic things like a rule requiring parties to keep each other informed of home address and phone number or a provision prohibiting the parents from speaking negatively about each other in front of the child. The term “housekeeping” is not used to trivialize these things, as detail matters. Rather, the term is used because they are all but presumed to be part of any order should either party ask for them.
Over many years of practicing family law in Colorado, I have determined that the one lesser issue which leads to perhaps more problems and litigation than any other is phone calls. Though telephone visitation is not mentioned in any portion of Colorado Revised Statutes regarding custody or visitation, almost every order will contain a provision for phone contact between the children and the parent not with them at the time.
When parents are away from their children for days at a time, it is natural that they may want to speak with the kids. Likewise, children, though generally to a lesser degree, will also want to speak to the other parent. The norm is generally that each parent will be allowed to talk to the child every day or every other day, for a reasonable amount of time. Common sense would dictate that something as simple as a phone call a day would be an innocuous provision, easy for each party to follow. Sadly, common sense often goes by the wayside when emotions run high in a custody case.
In cases in which the parents are committed to co-parenting, orders regarding phone calls can be vague, such as “each party shall be entitled to reasonable telephone contact with the children during their normal waking hours.” In an optimal situation, the parent with the children has no reason to prevent the other parent from talking with the kids, whether to say hi, goodnight, or to see how their day was. Likewise, the parent calling the kids has no desire to abuse the right, disrupt parenting time, or call excessively. Telephonic visitation should be, and can be, a non-event.
Of course, the “optimal” family only accounts for a fraction of cases. In many instances, the parent with the children will show a propensity to make it difficult for the other parent to speak with the children. Usually this type of behavior will manifest well before final orders are ready to be entered, thereby giving both the other parent and his or her attorney a clear indication that more specificity will be needed. In such a case, appropriate orders might indicate, “each party shall be entitled to one phone call per day with the children. If a parent calls and cannot reach the children, he or she will leave a message. The party exercising parenting time shall ensure that the children call back, that day, prior to going to bed.” With this type of language, the parent with the kids is required to ensure the phone call takes place.
Another example of problems arising with phone calls relates to the parent who either calls excessively or calls during dinner time, bath time, or the bedtime routine. With this type of problem, disruption occurs for both parent and child. In this type of instance, it may be advisable to get orders in place indicating that calls will take place during a specific time. For example, orders might indicate, “each parent shall be entitled to call the children each day between 7:00 and 7:30 p.m.” With a set time, everyone knows the rules and calls made outside of the time range would be considered a violation of orders. However, set times can also lead to conflict when a call is missed, perhaps when people are out to dinner and a movie. Thus, it is important to make sure there is a provision for a return call prior to bed or some other articulated exception. Children should not be bound at all times to a scheduled phone call and flexibility matters to them, too.
Even with specific rules in place, we still see litigation regarding violations of telephone contact orders, generally in the form of a contempt of court. Courts take compliance with their orders seriously and someone going to jail for something as simple as phone calls is not unheard of. When formulating orders it is important to both assess the level of conflict in any given family and to add as much specificity as is needed to prevent future conflict and to ensure compliance.
Regardless of what orders are in place, any parent in a custody case should recognize that telephone contact is supposed to be for the kids, not the parents. Phone calls should not be used as a weapon or threat to hold over the other parent’s head. They should not be used as a form of control. Most importantly, they should not become a chore or weight for the kids. A 3 year old may only want to talk for a couple of minutes. A 15 year old may not want to talk at all. Likewise, that little 5 year old may want to say goodnight to mom or dad and should never be prevented from doing so.
I will save the subject of cell phones, which bring their own set of challenges and battles, for another post. For now, remember that an experienced Denver family law lawyer can help you obtain and enforce appropriate orders regarding telephone contact with your children. Also, remember that telephone contact is for them and should be something pleasant.