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Brahm D. Siegel

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Ask a Divorce Lawyer: Is 2-2-3 the New Parenting Plan of the Year?

Posted: 01/30/2012 3:48 pm

Brahm Siegel is a Toronto family law and divorce lawyer, mediator and arbitrator. He will answer your questions on all aspects of family law. Write to him at bsiegel@nathenssiegel.com.

Back in 1995 when I started practising family law, the standard parenting schedule was pretty straightforward: The children resided primarily with one parent (almost always the mother) and, unless the other parent (almost always the father) was an addict, abuser or posed some other kind of risk to the children, he saw them every second weekend and one night a week. There were some variations on this theme of course, but they were rather minor. Weekends typically ran from Friday night to Sunday night but could go from Saturday mornings to Sunday afternoons, or Friday from school to Sunday mornings. The one night a week was typically Wednesday and included an overnight, but could just run from after school to dinner with a return home by 7:30 p.m. Basically, this was the schedule you could say I was "raised" on by other lawyers and judges I came into contact with back then.

Well, that was 17 years ago now, and things have changed. How? First, in recent years I have witnessed a strong trend towards equal-time schedules, the most popular of which is "2-2-3": two consecutive and fixed days with mother (Monday/Tuesday), two with father (Wednesday/Thursday) and then three days through the weekend with one parent (Friday after school to Monday morning) alternating every weekend. I'm not sure exactly when it started, but would guess that about a year and a half or two years ago it reached a tipping point of sorts where now almost every case I have someone is either requesting this schedule -- or opposing it.

Proponents of 2-2-3 like the fact it allows for less transitions than an alternate weekend schedule with two overnights per week (Tuesday/Thursday for one parent, Monday/Wednesday for the other). They cite that since the parents keep the same weekdays but alternate weekends, each gets the children for a five-day stretch every two weeks, which allows for short trips or holidays and an extended period of time where the children can enjoy some stable time with that parent without having to be concerned about upcoming transitions. Finally, they point to the fact that this schedule is consistent with the principle of the children having "maximum contact" with each parent, which is a principle enshrined in section 16(10) of the Divorce Act.

Opponents believe that children should typically reside primarily with one parent throughout the week with no overnights. They maintain that equal overnight access throughout the week disrupts routine, which is especially heightened when the parents have different expectations regarding bedtime and homework. They don't mind the five-day stretch when the children are with them, but believe it is contrary to their best interests when the other parent has them for five days at a time because they are the one to whom the children are most attached. They point to the fact that equal time should not be the goal of every parenting schedule; rather, a schedule which best reflects the children's "best interests" should be sought. Finally, they point to the fact that 2-2-3 involves a lot of transition, which confuses children and makes them constantly "on the move."

In my experience, the proliferation and popularity of 2-2-3 in recent years is due to a few factors: The increasing number of women in high-stress, high-paced jobs means we are increasingly seeing cases where both parents are out of the home most of the time; the increasing number of men willing to make sacrifices at work in order to bring their children into school in the morning or pick them up early in the afternoon means more cases where equal time is feasible; the strong impact men's rights advocacy groups have made around the world, and research which shows that provided parents are able to follow the schedule with minimal conflict, overnight visits for children over a certain age -- generally three-years-old -- pose no discernible risk to their later development.

Based on my consultations with potential clients, negotiations with opposing counsel and litigation in the courtroom, in general the biggest advocates of 2-2-3 are fathers and custody/access assessors (typically social workers and psychologists) while again, in general its most vociferous opponents are mothers and traditional judges who were raised on alternate-weekend-one-night-a-week schedules long before me. That is to say, I sometimes meet mothers who are quite agreeable with the concept of equal-time sharing, just as much as I meet fathers who are agreeable with the principle of the mother having primary care. Just not anywhere near as often as I am of fathers seeking equal-time or mothers seeking primary care.

I want to make clear that I am not an advocate of 2-2-3 -- or any other parenting schedule per se; whatever plan works best for my clients is what I'm interested in. I am simply commenting on what I see as the latest popular trend in schedules in family law and how it has emerged. In this respect, what I find interesting is that 2-2-3 has grown from the "ground up" over the years instead of being imposed by judges on couples. By this I mean that in general judges are much more cautious about ordering 2-2-3 than custody/access assessors and fathers are about recommending it. Sometimes there are good reasons for this, such as when there there is a lot of conflict between parents, or the children are very young or have special needs. However, what I predict we'll see in 2012 is more cases where average parents with an average modicum of conflict will find a more receptive ear from the bench about whether 2-2-3 is in their children's best interests.

Whether I'm right or not... I'll let you know next year.

Have a question about family law? Ask Brahm at bsiegel@nathenssiegel.com.