By Erik Carter
The custodial parent has custody of the child subject to the other parent’s parenting time rights.
This means that the non-custodial parent has the right to the children during their specified parenting time; any other time must be by agreement with the custodial parent.
If you want to spend time with your child(ren) during the custodial parent’s time, you can ask for this. Often this may require you to “swap” parenting time periods.
Some events are important enough that you can seek a court order to give you the child. This is usually for a one-time only event, the scheduling of which is not under your control.
The same rules apply to the custodial parent. The custodial parent, in most cases the mother, cannot unilaterally tell you that she is taking one of your parenting time periods, no matter how “important” the event is. Again, you have the remedy of court intervention if it is obvious that she is going to deny you a certain period.
If you and your ex agree to swap parenting time, it is best to follow these five rules:
1. Make sure your new time is executed first. For example, if you want to take some days during her Thanksgiving time, and she agrees, the time that she gets back should be executed by her after Thanksgiving.
This ensures that she does not take her make up time and then change her mind about the agreement. If you get your time first, then she will insist on the agreement.
2. Make sure the swap is agreed to in writing. This can be an exchange of letters or emails. The purpose is to present written evidence of an agreement to the court if you must try to enforce the agreement. Courts may still be reluctant to enforce texts as an agreement, so make sure you confirm the agreement in either email or fax/letter.
3. Put a deadline to respond on any offer to her. This prevents her from stringing it out by saying that she is thinking about it and then denying it at the last second.
4. Be clear on the dates and specific on the times. If you are asking for time over her Fourth of July holiday, specify: “From Tuesday at 4:00 p.m. until Thursday at 1:00 p.m.” Do not leave this up to interpretation.
5. If she is asking for some of your time, ask for proof of the event (and be prepared to produce this if you are asking). She should have no problem giving you an event schedule or a brochure, for example, so that you can confirm the days and times needed. This also allows you to participate if you so choose.
Swapping parenting time is treated by the court almost exactly like modifying a contract; there must be a “meeting of the minds” (i.e., agreement by both parents) and written evidence of the agreement is the strongest evidence.
The next consideration is that you want to get your time first so that she cannot renege on the agreement. There is unfortunately no guarantee that a court will enforce an agreement to swap parenting time. So get your time first so that there simply is nothing to enforce.
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