Bad Weather and Parenting Plans

Your co-parent's residential time with the child starts tomorrow morning at 10:00 a.m. In the parenting plan, it's your job to get the child to his other parent. You look at the forecast and it predicts heavy snow over the evening and into the following day, with icy road conditions. You are worried about driving the child to the other parent, but you're just as worried that the other parent is going to throw a fit or cause some legal trouble if you do not show up on time with the child.

What do you do?

I get this question all the time.

Let's start by looking at the nature of the obligation. A parenting plan is a court order. Typically speaking, court orders must be obeyed. Failure to do so can carry both civil and, in rare cases, criminal penalties. This is called "contempt of court." With that in mind, deviating from a court order should only happen in rare situations and there should be a compelling reason to do so.

To understand how contempt litigation works, you have to look at what a court must find (in Washington, anyway) for a person to be found in contempt. There has to be a willful violation of a court order that the person had the capacity to obey. This may seem like a lot of legal jargon, but a few examples should make it clear. Say for example I failed to deliver my kids on time because I had gotten hit by a truck and was in the hospital - no violation because I had no ability to comply with the order. Different example - let's say I did not deliver the children because we had texted the night before and I misunderstood your messages, and was under the reasonable impression you were OK switching nights with the kids - technically a violation, but not willful because it was not done on purpose. I thought we agreed to the switch.

Now, let's apply that to our bad weather situation. If you choose not to take the child over for residential time, you are purposefully violating a court order. You have to show that you either did not have the capacity to comply or that the failure to comply was not willful. Here are the steps you can take:

• Gather information - see what the forecasts are saying. Think about the specific route to the other parent's house and the capabilities of your vehicle. See if the local authorities are giving any advice (or making restrictions) about travel. See what large entities like schools, bus services, and other organizations are doing. Remember that these are the things you may have to look to in court to justify your actions, but more importantly, these are the things you should know before you call your co-parent to discuss the situation. If you are asking the other parent to agree to change the schedule you need to have good information to support the request.

• Determine that Cancellation is Appropriate - Realize that a trip being inconvenient or difficult will not excuse your obligations under a court order. No one wants to go out in bad weather conditions, but generally speaking, this is not going to be an excuse unless there is a very real danger in travel, and that danger is supported by advisories from authorities reflecting the same. If you can safely make it work, do so. If not, then proceed to the steps below.

• Talk with your Co-Parent - Call the other parent up with as much advance notice as possible to discuss the issue. Waiting until the last minute frustrates expectation and builds tensions. Explain the situation, and before you call, have a proposal ready for make-up time. Under no circumstances should bad weather be an excuse for depriving a parent of their court-ordered time. At best, you are rescheduling it. In many circumstances, this phone conversation will be enough. Confirm the agreement by text or email (which you should do any time you deviate from a court-ordered parenting plan) and then move along. If a parent is missing out on regular time with the child, it is also a good idea to make sure phone or video contact happens to keep communication smooth.

• Write It Up - If the parties cannot agree, it is important to reiterate your proposal in writing via text message or email. Given the time-sensitive nature of these disputes, there isn't usually time to use the dispute resolution in parenting plans (mediation or arbitration) so your job will be to make a clear record. You will want to cite to all the data showing the drive to be unsafe, and make a clear offer for make-up time. Just to diffuse tensions and show you are above-board, it can also be wise to offer some additional time with the child to help smooth things over. This also helps diffuse any arguments that you are somehow acting in bad faith.

• Continue to Monitor the Situation - A bad snow storm Sunday night might excuse a Monday morning drop off, but not necessarily Monday evening or Tuesday morning. If you cannot safely comply with the parenting plan, you need to carefully monitor the situation and get into compliance as soon as possible. You should continue checking in with your co-parent to discuss weather conditions. Again, in the event the issue ever gets in front of a Commissioner, you will want to be able to document all the diligence you used in complying with the Court's order.

• When in Doubt, Lawyer Up - If you are not sure and you are already working with a lawyer, call them. Often the attorney can give you the best advice specific to your situation. In many instances, they can intercede with the other party or their attorney to get things sorted out and get everyone calmed down. Not all lawyers are the same, but I don't charge my former clients for fielding these types of "day to day" questions because checking in with me usually saves a lot of difficulty. Checking in is adding yet another layer of defense to any accusations of violating a court's order, since complying with the advice of your lawyer also reflects that your conduct is not willful, but rather a person doing their best in a difficult situation.

Hopefully this is helpful to you the next time this issue inevitably arises. There are tons of times where a situation arises (like blizzard) that isn't covered in the parenting plan. In these cases, it is important to understand the underlying legal princples and how to apply them so you can resolve these problems well in put yourself in the best practical and legal space possible.