In the second of a two-part series, attorney Robert Mues discusses the impact that a divorce may have on juggling a child’s activities and parenting time.
A recurring battle that I see in my family law practice is how to juggle a child’s extracurricular activities after a divorce. There is no black and white answer, of course, to this question. In many cases where there is shared parenting or both mother and father continue to communicate with each other and place the child’s best interest in perspective, both parents will attend the child’s after-school activities and will seamlessly foster the child’s continued participation in the activities no matter which home the child may be residing in. However, in a large number of post-divorce situations, especially in high conflict cases or where the parties do not live in close proximity with one another, continuation of extracurricular activities can present a major problem.
Oftentimes, I hear a non-custodial parent complaining that the custodial parent has enrolled the child in numerous extracurricular activities which prevent or impede the non-custodial parent from having any meaningful one-on-one parenting time with the child. Many courts throughout Ohio and other states have adopted a provision in their Standard Order of Visitation to address that issue. In Montgomery County, the Standard Order states, “Regardless of where the children are living, their continued participation in extracurricular activities, school related or otherwise, should not be interrupted. It shall be the responsibility of the parent with whom the children are residing at the time to discuss the scheduling of such activities with the children and to provide transportation to the activities. Each parent shall provide the other parent with notice of all extracurricular activities, complete with schedules and the name, address and telephone number of the activity leader, if available.”
Under Ohio law, the Court is charged to allocate the parental rights and responsibilities of the parties’ minor children as are in their best interest. There are a myriad of factors that the Court is required to consider to determine the child’s “best interest.” Click here to read all of those factors.
The Second District Court of Appeals for Montgomery County, Ohio, issued an interesting opinion in the case of Daufel v. Bardsley in August 2008. Both parents had filed contempt motions against the other, in part, dealing with conflict over extracurricular activities of their two minor children, ages 8 and 6. The Decree of Divorce provided that father was to have parenting time for six weeks each summer, but it must be exercised according to the Standard Order of Parenting Time. Mother had arranged a complex set of activities for the two children during the summer and wanted father to agree to have the children attend mother’s daycare in Dayton during the summer so that the children would be able to attend their extracurricular activities uninterrupted. Instead, father who lived in Wilmington, Ohio, about 30 miles away from mother, wanted to have the children with him in a daycare setting in Wilmington as he had done in prior summers. In analyzing the situation, the magistrate found that, “’[g]iven the numerous extracurricular activities the children are involved in and the distance between Roger’s [father’s] daycare provider (in Wilmington) and these activities, it is physically impossible for the children to attend all extracurricular activities.” Accordingly, the magistrate decided (1) that “[w]hen the children visit with Roger [father] during the summer, he shall be responsible for providing daycare,” and (2) that “[i]f the children are placed in daycare in Wilmington, Ohio where Roger works, they do not have to attend the extracurricular activities in Montgomery County [where mother lives].’”
This part of the Court Order was ultimately appealed to the Second District Court of Appeals which upheld the Magistrate and the trial court’s decision. The Court of Appeals held that the issues of attendance at extracurricular activities are “. . . issues which are within the sound discretion of the trial court to determine.” Further, they held that the goals of the provision of the Standard Order of Parenting Time, cited above, to be aspirational, not mandatory. The Court then went ahead to uphold the Court’s modification of the provision of its Standard Order of Parenting Time.
The holding of the Court of Appeals in this case makes it clear that litigants should not lose sight of what is in the best interest of their children by believing that provisions of a Court’s Standard Order are “black and white” and not subject to modification. Here, the trial court, in my opinion, correctly determined what was in the children’s best interest by balancing the children’s attendance and participation in extracurricular activities with the need for the children to be able to fully exercise summer parenting time with their father.
The magistrate observed in Daufel that it is unfortunate that these children have parents that “engage in a contentious battle of post-decree motions and do not place at the forefront what is in the best interest of these young children.” The Court of Appeals went on to endorse that view and urged the parties to conform their future conduct to serve the needs of their children rather than their antagonism against each other. Click here to read a full copy of the Court of Appeals opinion in Daufel v. Bardsley.
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Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.