Extracurricular Activities – Wandering the Family Law Desert Without a Legal Compass

Soccer. Baseball. Basketball. Karate. Scouting. Piano. Football. Do any of these (plus more) sound familiar to you as activities you (and your child) want to participate in as an extracurricular activity? Who, as a parent, doesn’t want their child to have these experiences growing up? They teach teamwork, goal setting, develop hand-eye coordination, engage the child in social interaction, provide physical exercise, help to introduce and grow childhood friendships – all totally worthy and necessary components of child-raising and development. Non-divorced parents put their heads together and select the activities that they can afford and fit with the child’s and the parent’s schedule – they make it work. Certainly, divorce shouldn’t get in the way of letting their child “just be a kid” – but it does. And worse, for all the thousands of pages in the Texas Family Code addressing every legal aspect of the parent-child relationship between divorcing and divorced couples – there isn’t one word devoted to extracurricular activities. Not one! So, how does little Johnny stay with his little league baseball team after Mom and Dad divorce? All a Court can do under our present system is to look at and balance the following factors in refereeing the dispute:

1. Age of the child. Most of the disputes over-involvement in extracurricular activities occur when the child is between 6 and 12. Once Little Johnny gets to middle school he is going to have whittled down what he likes and is good at in terms of these activities. Plus, activities offered through the child’s school are going to take control and the child is going to be more vocal about what he or she wants to do. The problem is more present with the child is between the ages of 6-12 when most of the offered activities are being provided through voluntary associations or private instructors. The problem lessens immensely when the child gets to middle school and high school – but still impacts divorced families trying to accommodate the child’s involvement and their own new family schedule and traditions.

2. Possession Schedule. How are the divorcing or divorced parents sharing possession of the child? Is it a traditional Texas Possession Schedule where one parent has the child on Thursdays during the school year then on certain weekends? Are the parents following an equal split of time with the children like a week on, week off schedule? Is there some variation between those two schedules? The problems always arise when addressing activities that don’t have any deference to “possession schedules” and practices and games during a season fall across both parents’ possession times. If Mom signs little Johnny up for soccer in August for the fall season – what’s Dad going to do on Thursday when it is his time with little Johnny? Watch him from the stands for an hour or two or be able to take him home and spend one on one time with him. The more equal the time the parents have the more difficult resolution of this problem becomes.

3. Distance the parents live from each other. If the parents live a long distance from each other, then these problems get exacerbated. Traffic, travel times, school dismissals all impact significantly the ability of a parent to get little Johnny to his basketball practices on weekdays as well as to his clarinet lessons. Sometimes it just is practically impossible to coordinate the child’s extracurricular activity with the possession time a parent has with the child.

4. Costs. Who pays for the activity? If one parent is paying child support and little Johnny is in Select Leagues or the sport is an expensive one, then money will get in the way for sure. In the free enterprise world we live in the parent that is expending hundreds or thousands of dollars on a child’s activities certainly should be allowed to control the type and involvement of their child in an activity, right? Should the other parent be required to contribute to this activity that they didn’t originally agree to have their child join? If the post-divorce economic reality of a parent results in little Johnny dropping out of his martial arts classes, how do you tell him he can’t go any longer without throwing your ex under the bus?

5. The courts’ approach. Courts are not well equipped to solve these problems. There is no guidance in the Family Code and very little to none in the case law. This is the one area of family law where the judge hearing the case has total of 100% unbridled discretion to do what he or she thinks is “in the best interest of the child”. Some judges will get their hands dirty and get intimately involved in trying to solve the problem. Others, as one Judge told a client of mine years ago, will refuse to “become involved in the minutiae of your lives”. Generally, however, courts will use a balancing approach – protect the right of a parent to control their designated periods of time with their child while allowing the child to participate in activities. Courts will assign seasons to a parent in which they get to choose the activity for the child and the other parent will be required to see that the child gets to all practices and games and limiting the number of activities that a parent can sign little Johnny up for per season. Others will set the number of activities per season and let each parent have an equal choice. Some will merely let the chips fall where they may and signing up little Johnny for football leaves the possibility that he will be playing for the Jets football team one Sunday and the Titans football team the next weekend. Most will not render rulings on who pays except for the rule that if you sign them up then you are going to pay.

6. Solutions. With no guiding principles to guide a divorcing or divorced parent in these situations, the common sense approach is simple. Don’t sign your child for an activity unless the other parent agrees and is on board. If there is one thing (other than medical and educational decisions) that divorced parents should work the hardest to be on the same page – it is fulfilling the goal of letting their child “be a kid”. The parent’s convenience needs to take a back seat to the child’s “childhood”. If this is not possible – and too many times it is not – then paying lawyers to take this before a Judge to do a “replay” on the decision of extracurricular activities is going to be an expensive lesson in how much you are not in control of the situation. My opinion after doing this for a long time is (a) try to work it out with your ex and then (b) be honest and transparent with your child and involve him or her in the decision of what extracurricular activities are going to work under the financial and emotional situation with your divorce. Don’t blame the other parent – either directly or indirectly. This will only come back to bite you later. The world is full of harsh realities and – in a perfect world – and 8 year old shouldn’t have to be part of the solution to this problem. However, this situation can be turned into an early life lesson for them. In the immortal words of the Rolling Stones – “you can’t always get what you want, but if you try sometimes, you might find, you get what you need.”

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