24. How is Timesharing Split Evenly With 365 Days in a Year?

Sydney Mitchell.:
Welcome to this episode of Mediate This! Matthew and I are just going to be picking up our conversation right where we left off in the parenting plan. Last couple episodes, we talked about transportation in state, as well as foreign and out of state travel, as well as transportation and exchange. So Matthew, our next section here, according to your document is designation for other legal purposes. Walk us through what this section of the agreement is, what it does, what it’s for, and everything that it, that it tells us.

Matthew Brickman:
Okay. So this just depends on their time sharing schedule. So if they have a time sharing schedule where one of the parents has the majority, so it doesn’t matter, it could be 51 49, right? Like if they have the majority time sharing, then we simply say that the children named in the parenting plan are scheduled to spend more overnights per calendar year with the mother or with the father. That’s it. And the language says, this section is solely for the purpose of state and federal laws. I’m not sure what state and federal laws pertains to, but we do have to have it in the parenting plan. Um, and then it says it’s got a, it’s got a sentence that says the mother and father understand that there’s no primary or secondary designation of state of Florida. And then it talks about the internal revenue code. So this section specifically excludes any rights or obligations under the internal revenue code. It’s just a general section that or general sentence that says this doesn’t have to do with the tax exemption because we deal with the tax exemption with child support in the mediation agreement.

Sydney Mitchell.:
Okay. So you read here the sentence that says the mother and father understand that there’s no primary or secondary designation in the state of Florida. Is that true for most States?

Matthew Brickman:
I just depends what their, what their state laws are. Um, I don’t know, you know, every single state have, they’ve gotten rid of primary and secondary designation. Uh, but you know, now that sentence, that sentence, I will delete if I’m doing it out of state or out of country mediation, which I have, uh, because it doesn’t matter. I mean, like, you know, but that events there for clarity purposes in Florida, being that most people come into mediation, knowing that we used to have primary and secondary designation. So when we’re talking about designation for legal purposes, it’s a clarifying sentence that reminds them that even though we’re designating for legal purposes, nobody’s primary or secondary, we don’t have that in Florida.

Sydney Mitchell.:
Okay. Just want it to be fun. It’s a comfort.

Matthew Brickman:
That’s why then the last sentence says this section does not affect either parent’s rights and responsibilities under this parenting plan. So it is a section that is, that is there for purposes of state and federal laws, whatever state and federal laws are there, that they need this section fine. Now what if the parties have 50 50 time check? Okay, fine. Then it’s just slightly different. The children named in this parenting plan are scheduled to spend equal overnights per calendar year with his or her parents. Now let me show you something. This is, this is interesting, and this is, this is something that we did not discuss earlier. Um, and in a previous episode, only because it wasn’t coming up as much, but it is new to the parenting plan. So when we’re talking about designation, let’s say for example, and we’re going to go back upstate, and we’re going to scroll back up to the time sharing schedule.

Matthew Brickman:
So remember what the time sharing schedule at the end of it, we talked about number of overnights, where you have to put how many overnights mom has over how many overnights it has, right. Remember that? Well, so a lot of people have been arguing over that designation. Well, you know, I have 182, or I have 183, cause there’s 365. You can’t do exactly equal. Right. And I’ve had people that have had we’ve, I’ve done mediations where it says, like mom’s got 182, dad’s got 183. And you know, you and I have talked about where, where we added the word an approximate total, you know, because they were sitting there during every single day going, I didn’t get my 102.5 overnights. Right? So for clarity purposes and also down in that desert, the nation section, this has been at it. So let me read this baby based upon the timesharing schedule.

Matthew Brickman:
This is when parties have 50, 50. Okay. Based upon the time sharing schedule, the mother has an approximate total of 183 overnights per year. And the father has 182 overnights per year in even numbered years. And the mother has it approximate total of 182. And the father has an approximate total of 183 and odd numbered years because it’s never going to be 182.5. It’s not going to be 50 50. Right. But the, it requires that the two numbers equal 365 fine, but to help the parties and then for any state or federal designation, whatever they’re looking at, it’s been expanded that says while the court requires that the numbers equal 365 for child support purposes, the parties understand and acknowledge that in each individual calendar year, the minor children may exercise more than 50% time sharing with one parent. And then the next year, the minor children may exercise more than 50% time and sharing with the other parent. And so similar to what you and I had talked about, like with you growing up and like, maybe you do a, a holiday with one parent one year, but the next year you’re with the other parent, right. Throws off all the number systems. Correct. Right. So then it says globally over time and through the, like, I don’t know how explicit we can get globally over time through the years, the parties understand that the minor children will be exercising equal over time, uh, equal time sharing with his or her parents.

Sydney Mitchell.:
So just ensuring that the time sharing is relatively equal, you know, if they’re on an every other year basis.

Matthew Brickman:
I mean, and, and, and it’s one of those things like, let’s, let’s say, for example, going back to the time, sharing that you’re with your parents, like your mom for Christmas break one year and your dad for Christmas break one year. Well, if you take six years and you add up all the time, you were with your mom and all the time with your dad and an average amount is probably going to come out equal. Yeah. If you looked at just 20, 19 and 2020, no mom had more one year, dad had more one year. And so back down to this section of designation for legal purposes, that’s why we say that they’re scheduled to spend equal overnights per calendar year with his or her parents. But we’ve added that section for clarity purposes for state and federal laws that are going to get involved. Or so the parties have clarity or so the judge has clarity. Then everybody understands that we are not counting every specific day. And then going, you got 180 to one year the next year you got 183. It’s never going to turn out.

Sydney Mitchell.:
Right. No, and that’s so relevant because there are so many parents you that go back and forth between holidays where breaks and things like that. So I think that’s, I think that’s a great, a great clarifying paragraph.

Matthew Brickman:
Yeah. Yeah. So the next section then is changes or modifications to the parenting plan. This is very, very similar Sydney to what we had discussed in the first episode of the parenting plan, um, went or the first episode that we started to talk about the parenting plan, not the first episode, but the first one where we, where we said the courts, as well as the parents, understand that life will happen and changes to the parenting plan will need to occur. Right? Both parents 50, they will attempt to cooperatively resolve any disputes, which may arise over the terms of the parenting plan. And they understand that the parenting plan could be modified or varied on a temporary basis. Only when they agree in writing. If they do not agree in writing, then the parenting plan remains in effect and is the governing document of rules and regulations till further order of the court.

Matthew Brickman:
So that was the beginning of the parenting plan. So after they’ve gone through and created it and everything, it’s sort of like a reminder that says the parenting plan may be modified or varied on a temporary basis when both parents agree in writing, when the parents do not agree in writing the parenting plan remains in effect until further order of the court. So it’s just clarifying, reminding, going in the beginning, Hey guys, before we create it, just know you guys have the ability to modify it. Now they’ve gone through and created it and it’s, Hey, remember, you guys have the ability to modify this, but it does say any substantial changes to the parenting plan must be solved through filing needs, support, petition for modification. So there’s going to be a major change. And this is not a major change of like we’re going from a two to five, five schedule to a seven seven schedule because it’s 50% to a different 50%.

Matthew Brickman:
No, but let’s say for example, that, you know, parties have 50 50, and you know what? Now one of the parties has to relocate say to a different part of the state. That’s more than 50 miles. They can’t do 50 50, or they move out of state. That’s a substantial change that they have to come back. They have to file a sup, a petition for modification and come back to mediation and create a new parenting plan. So again, it’s just a reminder, that’s at the beginning and the end is sort of like an Oreo cookie. Like they aren’t stuffing. This is, this is the cookie part. They got to create the stuffing. But remember, you guys can modify this as long as you agree in writing. The next section is very important because just like I said, if somebody is going to move that could change this parenting plan, this is the relocation statute.

Matthew Brickman:
Any relocation of the children is subject to, it must be SOC compliance, subsection six one one three zero zero one of Florida statutes. So what does that actually say? Well, if a parent is going to relocate more than 50 miles away from the other parent or from their residence where they are at the time of executing this agreement, well, that’s going to change the entire timesharing. So remember, in the last episode where we were talking about, um, the, the transportation, or actually it was two episodes ago, I guess we were talking about the transportation exchange where that judge had said, Hey, you know what, we’re gonna do a 50 50, but dad lived in Miami and mom lived in Riviera beach. Right. But mystically, that creates an issue like how do you do that? Well, the relocation statute is there to prevent those types of things from happening because logistically you can’t, and that’s not in the best interest of the child.

Matthew Brickman:
So what’s interesting though, is, is how do you calculate 50 miles, right? Like, how is it? Well, the statute talks about as the Crow flies. So it’s straight line distance. It’s not as the car drives now in Oklahoma or the panhandle of Texas, the car drives at a straight line. There’s nothing there, it’s a straight line. So the car driving and a bird fly, and it’s the straight line in Florida. We are surrounded by water. We have water all throughout the state. And if anybody pulls up a map and looks at Florida, you’re going, who created these roads there? I mean, it might look like you’re driving 90 miles to actually go 40, who, because we have to go around a Lake, a huge Lake in the middle of the state. Right. And so, and so it is as the Crow flies. So there’s a great website that we put into the parenting plan, where they can put in there to add dresses and it’ll show straight-line distance

Matthew Brickman:
And driving distance. And what the statute

Matthew Brickman:
It says is as the Crow drives or has, has the Crow drives burrs, don’t drive no, as the Crow flies, not as the car drives. So while you may look at and be like, wow, it’s 60 miles, but it’s only 46. As the Crow flies will then find you within the relocation. Um, and then it’s in chapter 61, one three zero zero one, that there’s a whole bunch of factors that say, okay,

Matthew Brickman:
If you are going to

Matthew Brickman:
Petition the court or ask for a relocation, we’ll then here’s all the different factors in order to have

Matthew Brickman:
Granted Sydney, I’ll tell you, it’s one of the most difficult things to do in family law, because

Matthew Brickman:
Look at the rest of the parenting plan, look at shared power, responsibility, time, sharing, communication, education, transportation, that can create a completely different world for the children. Right, right, right. And so the courts, I mean, what I’ve seen in the, you know, decade plus that I have been doing

Matthew Brickman:
Mediation 14 years is,

Matthew Brickman:
Is this is one of the hardest, if not most impossible things to do in

Matthew Brickman:
Family law, it’s actually

Matthew Brickman:
Probably easier to convince the other

Matthew Brickman:
Parent to allow it then the court. And

Matthew Brickman:
If you think that the other parent is going to give you a no and give you a hard time, just wait until you pull that statute and look at all the factors. And when it comes to the factors, it has to be all of the factors, not like 80%, some of those factors, um, what, one of the hardest ones Sydney is, you’ve got to prove that you can not get a job in anywhere in the state of Florida or within that 50 miles. And I’ve only seen that one time because this particular mother was, um, she was a tech at the hospital on this particular machine. And there were only four machines in the entire

Matthew Brickman:
Country. So it

Matthew Brickman:
Wasn’t like, like I had one recently Sydney, where the mom wanted to relocate for a job.

Matthew Brickman:
She’s a bartender. Why you’re a bartender. You live in Florida. Like you,

Matthew Brickman:
You get a job as a bartender anywhere you had to go to Nebraska because that’s where you could get a job as a barter. Like really I had one recently where, where the dad left and went to Texas,

Matthew Brickman:
Why? Well, he’s a car dealer. Right.

Matthew Brickman:
Really? You couldn’t sell a car at any other dealership in the state of Florida. And so you had to go

Matthew Brickman:
The Texas. What? And so Vance one of the biggest to overcome, um, um,

Matthew Brickman:
Well at the, you know, the court has to look at, you know, they have to look at, you know, is it in the best interest of the child? You know, sometimes like some, some sometimes, you know, um, I’ve had it where a mom says, you know what,

Matthew Brickman:
I’m taking the child and you know what we’re going to get as far away from the father as possible. No, you’re not, no, you’re not. And they, and they said to me, what do you mean? I mean, it’s my kid. I can’t just move. Nope. We’ll until when, until the child, emancipates what I gotta be here for, you know, the next 13 years, I’m like, yeah, unless he agrees. So you can’t just leave because you hate the other parent or because you, you know, you, you, you want to get away from the other one or you don’t, because that’s the whole thing. It will interfere with the relationship between the child and both parents and the parents don’t have the rights to the child. The child has the rights to the parents. Right. But yeah, there’s, there there’s a lot of factors, a lot of factors.

Matthew Brickman:
Um, with that, I actually had a, I a, a mediation. I was their mediator. Um, and they were looking for a relocation of the children and they ended up having to hire a guardian ad litem. At the time I was a certified guardian ad litem, and they wanted me to be their guardian. And it was an out of country relocation. So dad lived in West Palm beach and mom was relocating down to The Bahamas and she wanted the kids to move to The Bahamas and then exercise timesharing with dad back in the States. And dad wanted the kids to stay with him in the States and wanted mom to have timesharing. Well, they hired me as the guardian ad litem to do the investigation, to report to the court of what I believe is in the children’s best interests on the guardian of the case. And so I had to, I mean, it was a 75 page report.

Matthew Brickman:
I think that, I think it wasn’t that I submitted to the, to the courts, but I had to go down to The Bahamas, um, which was not a bad job. Um, so I, there, um, I also had, and so I had to do massive investigation and I had investigate everything. I went through every piece of the statute. So I had to look at the schools. I had to compare the United States education system with the British education system because where they were going was based on British education. I had to compare the two schools. I had to compare crime and statistics. I had to compare emergency EMS and response times for the islands versus West Palm beach. I had to interview the children. I had to interview neighbors, teachers, family members in both their homes. I mean, very, very extensive. I had to look at the financial resources.

Matthew Brickman:
Where would the children be with a parent more what’s in the children’s best interest? I mean, it was, I pulled up the statute and I had to go through every single factor in the statute of what is, what is good, bad and indifferent on each families. And so when I went down to The Bahamas on this, like, I mean, that’s a lot of information to take in, right? So there, I’m wondering how long this whole process took. Um, I was in The Bahamas for 24 hours and I’m like, I’m supposed to crash. I’m supposed to get all the information in 24 hours. And I do, but how do you do that? And remember every conversation and every thing that you’re learning and doing in 24, you take lots of notes. No, no, no, no. I’ll tell you this in a second. And then, and then when I’m talking to the teachers here, the kids teachers here and going through all of that, how am I going to keep straight all of my facts?

Matthew Brickman:
Well, I bought a headset, little GoPro headset, put a GoPro on and hit, written, hit record, and recorded every single conversation with every single person and was able to go back, listen, because I mean, 75 page report, all the factors 20 something factors are. So I think in the, in the statute, you know what I mean? And, and I need to get this right? Like I’m looking at where are these children? And I’m having to choose between, is it better with mom or dad? What it’s best interests? And so, yeah, I go pro to everything. I mean, it was, it was, it was quite interesting. Uh, but then I had to go through and do the entire analysis, submit the report. And it was interesting because when I, when I gave the report to, um, to the, the, the father’s attorney and the mother’s attorney, they’re like, wow, I want to go to the farm there, who wouldn’t, but is that in the best interest of the kids?

Matthew Brickman:
Um, and you know, uh, it was, it was, it was a great experience, but it really, really, as a mediator gave me huge insight to how does the relocation statute really, really work outside of this one sentence, 80 relocation of the children is subject to, it must be sought in compliance with section 61, one three zero zero one, a Florida statutes that doesn’t tell you anything. Does it all that, does that tell you, well, where, where do I go to read what the factors are, but then how do you compare all the factors? How do you that? Well, you know, by report actually had to go through and do that. So 80 is one of the most difficult, most, um, important pieces of the plan, because if you don’t get it right, you could really, you know, you know, either, you know, you can really destroy a relationship between a parent, right. Um, and then I, you know, and, and, and look, and I lived that too. Cause remember, you know, my ex wife gave me the kids and then she moved away. We were on a relocation, like, okay, now she didn’t have to petition because she wasn’t taking the kids. If she was going to try to take the kids with her to New York, when she went, then we would have had a relocation case.

Speaker 4:
How old were the kids when she moved six and eight. Okay. Um,

Matthew Brickman:
Being the, she moved and did not try to take the kids well then fine. She left the kids. If she wanted to take the kids, she would’ve had to meet the factors or would have been no. And of course I wasn’t going to voluntarily say, yeah, take my kids. Um, but, but yeah, I mean, so, you know, we, we had a relocation without having to do it because she wasn’t looking to take it, the kids. Okay. Um, the next section is, is just the dispute and conflict resolution section. It says the parents shall attempt to resolve any disputes that may arise over the terms of the parenting plan. And this is interesting. I’ll tell you this in a second, the parents shall use mediation or either suit resolution method before filing a court action pertaining to this parenting plan. Um, many attorneys, not the parties, but the attorneys argue over the word shall use and they change it to may use.

Matthew Brickman:
We don’t want it to command. We don’t want them to have to come back to mediation before filing a court action. We want it optional. They should come back. You and I have discussed extensively. They should be taking control of this without getting the courts involved. But some attorneys, not all of them, but some attorneys want that shower change to may to where the parents may use mediation, where they’re not commanded. But here’s the difference before filing. Once they file, most courts will order them to mediation. They just don’t want the, they just don’t want them to have to come before they can even file. So sometimes we’ll change this to the parents shall use mediation before attending a hearing because the courts are going to require that anyway.

Sydney Mitchell.:
Right. Is it up to it doesn’t sound like it’s up to the parties to change that word from shall to may whose decision is that?

Matthew Brickman:
No, that’s up to the parties or it’s up to the attorney. Okay. They can’t, most parties don’t change it because look, it’s in their best interest to come back to mediation. It’s cheaper, it’s cheaper, you know? Um, but I do, I, you know what I do understand where the attorneys are coming from, because what that does is that prevents a party from filing something, which they may need to file contempt, right. Or a violation of this agreement. But this is, they have to come back to mediation before they can file a contempt. The problem though, Sydney is I can’t negotiate a contempt. I’m not a judge. You’re either in contribute either violated this or you didn’t, but I’m not in a position. I’m I can’t say, well, yeah, you violated this only a judge can. So I understand that. So sometimes we get creative with the language that may say, you know, that they’ll, that they’ll come back to mediation before attending a hearing.

Matthew Brickman:
They can still file, but before attending a hearing and we’ll change it if court order, because sometimes again, it may be a hearing on contempt where they’re not ordered to come back. Even though I have had judges that have ordered people to mediation on a contempt, and I’m going, I’m not a judge. Like, what do you want me to do? And surprisingly enough, Sydney were able to settle the issue and then, and then canceled the motion for contempt enforcement. It’s weird, but whatever. But then that can exist to then other provisions. So other provisions. So this is the most important piece of the parenting plan because a lot of people are like, well, great. I’ve got a 14 pages of nothing but rules. Just a bunch of words. So what happens if, if they don’t follow it, then what? Well, here’s what happens. A parent’s failure to abide by the terms contained this parenting plan.

Matthew Brickman:
Do you and I have done a number of episodes going through tearing apart the terms contained to this parenting plan. So if a parent chooses not to follow the terms contained to the parenting plan, the other parent may choose to file an action for enforcement. That non defaulting party may be entitled. And it’s a maybe because that’s what the statute says, it’s optional discretionary to the court, but this is all the things that the statute says that, that, that, that the judge has the power to do, depending on what violation they had. So the non defaulting party may be entitled to make up time sharing reimbursement of attorney’s fees and costs. And then the defaulting party, whoever breached this contract may be required to attend an additional parenting course. Maybe they didn’t learn how to be a good parent and they, and the one they had to take in the first place, because everybody that has a kid that has a parenting plan has to take a court ordered parenting course before they can even get divorced or be done with their paternity agreement, uh, perform community service, uh, Sydney, I’ve never seen a violation of a mediation agreement where they had to go do community service.

Sydney Mitchell.:
I was going to ask if that was common because I

Matthew Brickman:
I’ve seen it, but you know what, it’s a tool there for the judge to use depending on the violation, but then here’s the most important piece or may have the time sharing schedule modified. So what the statute says, and I think you and I have probably talked about in one of the other episodes is in order to modify the timesharing plan, there has to be a sub, a substantial material, permanent unanticipated change in circumstance in order to modify, that’s a pretty high bar like, wow, like, you know, it’s a major change, but this says, well, if you’re not abide by the terms contained in this plan, a court could come in and take the time away. Well, you know what, if you know that that is a potential, um, punishment for not following this, maybe you’re going to think twice before you’re going to breach one of these different rules that we’ve put in this parenting plan.

Matthew Brickman:
Right? So that just keeps everybody paying attention going before I’m going to act like this. Ooh, I could potentially lose time, Sharon. You know what, I probably shouldn’t post this, shouldn’t say this, shouldn’t do this. Shouldn’t violate that like follow the rules or it says, or any of the appropriate sanction, including contempt, which the court may deem proper. So, you know, that’s, you know, all of this is at the discretion of the court of if you’re going to violate this well, these are the things that could happen. And by having the enforcement clause in there, again, it makes you think twice before violating the agreement,

Sydney Mitchell.:
Right? So this other provision is kind of wraps up again. It kind of ties all the loose ends together, all the things that we’ve decided if any of them are violated, this is the course of action. Um, so it’s this the conclusion of the parenting plan. I know you mentioned that there may have been another section.

Matthew Brickman:
So this, this, the conclusion of the parenting plan, except for, and what we’re going to talk about in the next episode is there is an entire child safety section of the parenting plan that, um, parties get to create based on whatever they’re experiencing. And so we’re going to dig into that. Um, actually the entire next episode is going to be all the ins and outs of the child safety section of the parenting plan that sometimes we need to address Sydney. And sometimes we don’t, it’s not in every parenting plan and we’re going to go through all the different things that in 14 years I had put into a child’s safety section and discuss them, but everybody needs to know that those are not in every single parenting plan. And then that will conclude the parenting plan portion of the podcast. And then once we’re done with that, we’re going to get into the actual mediations settlement agreement because the parenting plan is an attachment to the mediation settlement agreement that deals with all monetary, uh, regarding either the marriage or child support related issues. So we’re going to get to that.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q &A Bonus Episodes where we will answer questions and give you a personal shout out.