So You Have Your (Child Custody) Agreement: Now What?
Published to: alternate dispute resolution, Bridgeport, Buckhannon, Custody, enforcement, Mediation, parenting plan, Perspectives of a Small Town Lawyer, West Virginia Lawyer - Tips and Techniques
on July 23, 2017 3:11 pm
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Author’s Note: this article was inspired by a nervous client who concedes the parenting plan we negotiated for her is a pretty good one but who knows it will be violated. That was the path of their last mediated agreement, with the result they were back in court within six months! Is there a path to avoid that? Often there is, and most people do not take it!
Author’s new note: March 17, 2020; I received a note from Johnathan praising this article, noting the link to “Our Family Wizard” and offering this comprehensive article from “Broadband Search” on important issues including the “bad” or potentially bad sites available to your children. I now share that link, with sincere thanks: https://www.broadbandsearch.net/blog/apps-social-media-online-safety-parental-awareness?msID=44b73d1c-1b08-415c-997d-8ba5c814765e
All too often, a mediator and the parties’ lawyers guide the parties to an agreement by predicting the likely rulings of the court, describing existing law, and nudging them in the right direction. But what about enforcement, and just making parenting plans work?
Typical violations are the failure of a parent to participate in counseling or take the required video parenting class, failure to keep the other party informed on matters directly relating to the child’s welfare, failure to exercise the time that they asked for strongly during mediation, and poor communication, including insults and accusation.
Of course there are also “the big three”, substance abuse, alcohol abuse, and domestic violence. I will save them for another post. This post is for functioning adults who can have a successful parenting plan if both want it.
While I have always done some of the things set out below, I pull some ideas together here, so my client, and others like her, will not be back in court in six months!
I urge my client to read and take to heart my post “Winning Your Child Custody Case” https://hunterlawfirm.net/the-secrets-to-winning-custody-of-your-child/ and “More about Winning Your Custody Case”. https://hunterlawfirm.net/the-secrets-of-winning-number-ii/
At the heart of those articles, and my 19 recommendations, is the great wisdom of “The Golden Rule”, “Do unto others as you would have others do unto you.”
I explain to my client that transparency is essential. If she is going to travel out of the State of WV for a short vacation, or even a trip to Kennywood, and swears the child to silence because she doesn’t want to have grief with the other side, grief she will get as soon as he learns of the deception. It is better to deal with such things head on, and it is forbidden to order your child to keep secrets.
By keeping the other parent informed, preferably in writing, of every important aspect of the child’s life, goodwill will be generated, and a record compiled if needed for court.
Kindness often generates reciprocal kindness, but when it does not, the pattern can be seen and proven to the court in subsequent proceedings.
Assuming the client has read the “winning” articles and absorbed my way of approaching problem solving (search “Digging Down” in my blog), here are my tips for the person who is expecting trouble:
Read, understand, commit to memory, and keep with you, your written parenting plan or court order.
Please be sure your attorney gave you copies of the “modification statutes”, which have very specific requirements. https://hunterlawfirm.net/how-can-i-get-my-childrens-parenting-plan-modified/ .
With a difficult person, always communicate in writing, by text, or email, and in certain situations “snail mail”. Save those communications. Do not ever let any of them disappear into the ether. Even irrelevant things, if missing, will take on a sinister aspect.
We have begun to utilize the app “My Family Wizard” https://www.ourfamilywizard.com/por/courts , and in two instances my client has reported that she likes it. It allows for uploading of medical records and school class assignments, coordinating transfer points, documenting communication, setting of doctors and dentist appointments, etc. Everything goes through “The Wizard”.
Do not let violations slip by, but do not overreact. If the other parent shows up 10 or 15 minutes late to transfer points two or three times, write a formal email “Dear___, dated___, sincerely, your name.”
Don’t threaten or bluster; cite to your parenting plan and ask her or him to comply. And track in your journal or “The Wizard” whether they do.
Repeat and serious violations should generate a letter, but send it regular mail and certified mail with a return receipt card, with a document clipped to the back called a “certificate of service” certifying that you sent the attached letter by regular mail and certified mail, and keep the return receipt card.
If the other side refuses to accept the letter, but the regular mail does not come back, the court will conclude that they received it. That is why I always send formal communication with both mail types with the certificate of service.
If the violations continue, send another letter, again cite the violation by page and paragraph, but quote the “alternate dispute resolution mechanism”, mediation, and tell the other side that one more violation will cause you to schedule mediation, which will cost you each $’s!
If problems persist, activate the mediation provision”. Note: you will have to figure out the proper balance of patience, persistence, and action. The key is to act timely and appropriately at each step. And you will have to follow the right procedures to schedule and notice mediation.
My best estimate is that out of 50 recent contempt cases, I did not find five people who activated the mediation provision before they came back to me. What are people thinking?! The parenting plan is written to be followed, but to be followed by both sides!
You may decide to attend mediation without a lawyer, but the best $500 you can ever spend is a $500 “robust consultation” with a good lawyer (me) reviewing your actions to date, making sure you have documentation, and deciding whether to give the other side “just one more chance.”
Of course. serious acts such as child abuse or sexual abuse require immediate action such as reporting at the Child Protective Services, taking the child to the emergency room, filing an emergency ex parte petition or motion for expedited relief, and even reporting the offense to the police.
IN SUMMARY, you must have your own plan if you want your court ordered parenting plan to work. But do everything in the spirit of “The Golden Rule.”
This post was written by Burton Hunter