4.6 Joint Custody Implementation Plan
4.6 Joint Custody Implementation Plan aetrahan Fri, 06/23/2023 - 14:34If joint custody is awarded, unless there is good cause, a Joint Custody Implementation Plan (JCIP) must be submitted to the court.1 This requirement must be addressed even in cases of an uncontested 103(1) or 103(5) divorce by default without a hearing.
How do you get around the JCIP when the defendant will not show up or file an answer? You should plead that good cause exists where the defendant is an absentee, incarcerated, or out of state and served by the long arm statute as well as where the defendant has just been marginally (few visits a year) involved in the lives of the children. These facts should be crafted in your petition, prayer, affidavit of correctness, and the final judgment in support of a joint custody decree that contains the language of: “visitation as agreed to between the parties.”
Otherwise, the minimum requirements to qualify as an implementation order include parental time periods for physical custody and the allocation of legal authority and responsibility of the parents. Unless the parties agree otherwise or good cause exists not to, one parent should be named as the domiciliary parent. If older children are involved, it may be a good idea to have your client get their input on the implementation plan. Another recent development with custody plans is the non-designation of a domiciliary parent and close to a 50:50 shared physical custody plan (at least on paper). This shared plan would trigger Obligation Worksheet B and thus, a lower child support setting for the parent with the greater income. Nevertheless, a domiciliary parent should be named in a JCIP if it is clear that the parents will likely disagree on important decisions about the children, such as recreational activity, school issues, and discipline.2
It is imperative that all the parties sign off on the plan as it evidences the basis for an extrajudicial agreement between the parties. Making it an authentic act is not a bad idea.
The JCIP by itself is not the judgment, and the judgment must incorporate the JCIP. Rather than having two separate documents, it is acceptable to craft the judgment in such a manner so that the judgment and the JCIP are the same document.
There are different forms of agreements. A stipulation in “open court” – where the court is conducting hearings and the judge is on the bench – has the effect of an approved judgment of the Court and is effective at the conclusion of that approval. Prompting the judge to “swear the parties in and to have them acquiesce to the agreement” that has been read into the record is always good practice. A contempt on violation(s) of this stipulated judgment (even though a written one has not been presented and signed) is permissible. Our law gives effect to the parties’ oral stipulation when it is “recited in open court and susceptible of being transcribed from the record of the proceedings.”3
But many trial judges will not consider a contempt motion unless the consent judgment is reduced to writing. An extrajudicial agreement (outside open court) needs to be in writing and signed by all parties involved (attorneys included, if applicable). The agreement must be approved and signed by the court before it is adopted as the judgment of the court and for it to be effective.