New Hampshire Bar Journal
2011 Spring, Pg. 54.
MUCHMORE AND JAYCOX: A Call for Developmentally-Responsive Parenting Plans
New Hampshire Bar JournalVolume 52, No. 1Spring 2011MUCHMORE AND JAYCOX: A Call for Developmentally-Responsive Parenting PlansBy Benjamin D. Garber, Ph.D. and Laura M. Landerman-Garber, Ph.D.The 2009 Supreme Court ruling in Muchmore andJaycox (NHSC 2009-312)(fn1) has been largely received with grumbled complaint. Indeed, the court itself refers to the ruling as "regrettable." In short, Muchmore restricts the lower courts to modify parenting plans only when the conditions of 46l-A:11 are met; that is, when,
(a) The parties agree to a modification.
(b) If the court finds repeated, intentional, and unwarranted interference by a parent with the residential responsibilities of the other parent, the court may order a change in the parental rights and responsibilities without the necessity of showing harm to the child, if the court determines that such change would be in accordance with the best interests of the child. (c) If the court finds by clear and convincing evidence that the child's present environment is detrimental to the child's physical, mental, or emotional health, and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in environment. (d) If the parties have substantially equal periods of residential responsibility for the child and either each asserts or the court finds that the original allocation of parental rights and responsibilities is not working, the court may order a change in allocation of parental rights and responsibilities based on a finding that the change is in the best interests of the child. (e) If the court finds by clear and convincing evidence that a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the parent with whom he or she wants to live. Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child's preference, including whether the minor child's preference was based on undesirable or improper influences.
By effectively eliminating modification based solely on the child's best interests, Muchmore is commonly heard as a door slamming shut, leaving children to suffer until evidence of harm justifies hearing a motion to modify. Crusco (2010) observes that, " without a provision to allow for some limited modifications based on best interests, a parenting plan that addresses the needs of a toddler may have to do for a tween." (fn2 )In response, some attorneys and court officers are recommending that initial parenting plans be set forth as temporary, thereby allowing parties to "test-drive" the schedule before it is set in stone:
"One modification scenario where a temporary order would be useful is when an old parenting plan was made when the child was quite young, but doesn't fit now as the child enters first grade."(fn3)
We argue that Muchmore can equally well be heard as the opening of a door; that is, as a mandate for family law professionals to serve not only the best interests of the child in the present, but to craft parenting plans that anticipate the child's best interests over the likely course of development. Specifically, we posit that parenting plans which look beyond the present to anticipate each child's developmental needs are consistent with the law, better suited to the well-being of the child and the family, minimize the need for best interest modifications, and thereby have the incidental but not insignificant effect of minimizing the recidivist traffic that so burdens our courts.
Developmentally-responsive parenting plans. A devel-opmentally-responsive parenting plan looks beyond the static, crisis-burdened, family-in-transition that stands before the court to anticipate the child's reasonable and expectable growth and change across time. The courts presently require this sort of contingency planning in anticipation of both foreseeable annual events (e.g., holidays, birthdays) and potential future events (e.g., dispute resolution, relocation). Although there is no way to know with certainty, one assumes that these contingency plans minimize co-parental conflict which, in turn, minimize the child's experience of unnecessary anguish and associated post-divorce litigation.
More generally, we assert that the tiny minority of conflicted co-parents who demand the vast majority of the court's resources(fn4) benefit from structure. Psychology has established that structure in the form of limits on behavior, boundaries defining space, and predictability across time decreases anxiety which itself decreases conflict. As applied to post-divorce parenting, the more forward-looking, unambiguous and comprehensive the parenting plan, the lower the risk for conflict, confusion and need for modification.
In the same way that structure can help one student to focus but may inhibit another student's creativity, highly structured, developmentally-responsive parenting plans will help to contain some families but risk needless restriction of others. The majority of divorcing co-parents -- those mature and healthy adults who are able to embrace their...