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| Immortally Goofy |
By Elizabeth Kruska
I’m sure this has happened to everyone. When I was a kid, I did my best to understand the world around me. There were times I thought I understood something, and then as I grew up, as kids do, I realized I either misunderstood something before or didn’t have the context for it.
Let me give you an example. The Peter, Paul and Mary song, “Puff The Magic Dragon” was always a very sad song for me. The line, “Dragons live forever, not so little boys” made me cry once because I thought it meant that little boys who believed in dragons would die. Or maybe that dragons were out there eating little kids. I’m not sure exactly what it was, but the point in my mind was that dragons live and kids don’t, and if kids don’t live it means something bad happened, like they died.
It wasn’t until I was older that I realized that line was about growing up and not being a kid anymore, not about certain death at the hand of a dragon. But, hey, I was four (or thereabouts) and I had absolutely zero context or understanding about aging. It wasn’t until I was five that I learned the word regret and immediately sent myself into a complex because I realized I regretted not trying a banana chip when one was offered to me. Heady stuff.
But, who does have context for aging? I mean, other than dragons, apparently? Grown-ups! Unfortunately, aging is something we all do, unless we are eaten by dragons (see earlier paragraph about being eaten by dragons).
So, to boil this case down quite a bit, since it’s not really about dragons or banana chips, or the surprising depth of thoughts a small child can entertain, it’s about ch-ch-ch-changes as they happen to kids, and how a court could deal with it.
Ms. Terino and Mr. Bleeks were married and got divorced in 2015. They separated while Ms. Terino was pregnant. When the baby was born, the baby was primarily with Ms. Terino. Mr. Bleeks visited with the child at the home where Ms. Terino lived.
This was not a nice divorce. Without getting into the details of it all, things got ugly. There were ER trips. There was a DCF report. There were cancelled visits. It became clear these parties weren’t people who were going to be able to agree about things.
Regardless, they finally slogged through to the end, and the court issued a parental rights and responsibilities and parent child contact order, giving primary custody to Ms. Terino and visits to Mr. Bleeks. The visits were on a certain schedule, which was set to begin and then expand.
Mr. Bleeks filed a motion to clarify, because the order didn’t include any language about how to deal with the parenting plan schedule in the future. He was worried that the order would be too restrictive and not be able to be changed once the child reached school age. The parent-child contact order was created, in part, based on the age of the child at the time the order was issued. At that point, the child was 2. Adults, though, know that there are some things that will work for someone who’s 2, but may not work for someone who’s 5. Or 8. Or 15.
The schedule that was put in place by the court would work for someone who was 2. But as we know, dragons live forever, not so little boys (or girls—not sure if the child in this case is a boy or a girl). And since little kids become bigger kids, that means they’ve got bigger kid needs.
Mr. Bleeks argued that in order to bring a case to court to make changes to a parenting schedule, there would need to be an unanticipated change in circumstances as a threshold to modification. It’s the golden ticket to get in the modification door. But since we’ve established that it’s anticipated everyone knows that kids are going to grow up, and that kids’ needs will change as they age, parents’ hands are tied if they’ve got an order and an inability to communicate with one another in order to change the parenting plan.
Also, it isn’t exactly wise to make an order even more restrictive by saying that it’ll automatically change upon a certain event. Nobody has any way of knowing how things are going to be going when the child turns 4 or 5 or starts kindergarten. It may not be in the best interest of the child to say while the child is 2 that when the child turns 5 visits will become something different. It is okay, though, for courts to say that parents will meet to revise the parenting plan when certain events happen.
This is a real-life problem. So, SCOV tackles this real problem like this. Trial courts may say that the parents can revisit schedules during predictable changes in the child’s life. Parents need to be able to agree on things. But a trial court may, from time to time, include language that if the parents don’t agree, that the failure to reach an agreement could be an unanticipated change in circumstances. SCOV cautions to use this approach sparingly.
Because here’s the thing. Divorce litigation is not usually the high point of people’s lives. Indeed, it’s usually quite the opposite. As the dust settles, a lot of times people are able to talk to each other and make decisions about what’s right for the kids. If people divorce when the child is 2, chances are that by the time the child is 4, they’ll be able to work out their differences with respect to the parenting schedule so that everyone’s needs are accommodated.
Mr. Bleeks made another argument about the trial court not considering certain evidence. SCOV disagrees.
So, this one gets remanded to the trial court with respect to including a provision about future changes. SCOV is clear the trial court isn’t required to include such a provision, but may do so in its discretion.
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