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Ambiguity in Child Custody Agreements or Orders

Ambiguity in Child Custody Agreements or Orders

An agreement to have an agreement is not an agreement.

The biggest trap folks can fall into in a Child Custody case is being told that having flexible language in your Custody and Visitation schedule is a good thing. We don’t call it flexibility; we call it litigation. Not that we mind proper litigation through the Court system, but our goal is to do it once and do it right. The kind of litigation we’re hoping you can avoid is the day-to-day knockdown dragouts you have with your Co-Parent regarding that day’s or week’s schedule, or maybe just the anxiety that stems from uncertainty as you look into yours and your child’s near-term future.

Some Judges, Mediators and well-meaning attorneys advise their clients that there does not need to be a strict Custody and Visitation Schedule. We could not disagree more.

If you’ve been in a Custody case before, you’ve heard this from a Judge or Mediator: “you folks should grown up enough to be able to work together and figure this stuff out.” Our response to that: Why? Such a statement may reflect an understanding of utopian human ideals but woeful lack of common sense and experience with these kinds of cases.

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Let’s look at what these Judges or Mediators, with zero skin in the game, are asking you to do: (1) have no way to make your schedule and your calendar longer than a week or so at a time, (imagine having to speak with your ex anytime you want to plan a weekend trip or significant vacation — and that person having the legal authority to (a) stall on getting back to you and or (b) reject your plans),  (2) have no clear way to enforce whatever Custody and Visitation Schedule you do informally agree to and (3) regularly negotiate, deal with, get insulted by, controlled by and or manipulated by a person you’re not with for important, if not good, reasons.

If you have hired a law firm that spends most of its time, if not all of its time, working on Child Custody and or Family Law cases, then your lawyer can readily advise you of the risks of not coming to an agreement on a custody schedule. But, as we said at the beginning of this article, an agreement to have an agreement is no agreement at all…and you are asking for it.

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The main problem I have with the flexible approach is how easy it is to fix. Here’s how: (1) have a “default schedule” and (2) allow the parties to deviate from the schedule by express, written (text message or email fine) agreement. For example, “the Non-Custodial parent’s visitation shall take place the 2nd and 4th weekends of the month, unless expressly agreed in writing by the parties at least 7 days ahead of the regularly scheduled visitation period.”

There’s a couple of things happening here. First, I like 2nd and 4th weekend a lot more than “every other weekend. What happens at Christmas or Spring Break or if someone misses a weekend because of work? Which weekend is which? No kidding, I would advise my clients with Visitation schedules to take 2nd and 4th over “every other weekend” even if that meant less time with the child because of the predictability and peace of mind that comes with knowing which weekend is which each month. (Of course, the 1st, 3rd and 5th weekend is optimal – but that tends to give Custodial parents jitters about the Visiting Parent having 2 weekends in a row so it’s tougher to get unless it’s in the Court’s “Standard Visitation Order.”

Back to our example, the fundamental key there is nothing to discuss between the parties if they desire not to discuss it. Assuming there is clear language about which time and place of the 2nd weekend of the month for the exchange of care and control of the child, all you have to do is be, as we often say, “where you’re supposed to be, when you’re supposed to be there.”

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Imagine a contract a big business like Apple signs with a supplier. How many pages do you think that contract is? Now imagine something more important than Apple’s business relationships, like, oh, I don’t know, your children. Now, when it comes to that, we’ve got folks sitting in their ivory tower telling you to just “figure it out” as you go and you don’t have a team like ours behind warning you against it.

We understand that the level of detail we like in our Agreements, and request in our Court Orders, takes a little extra work in the beginning and might ruffle some robes, I mean feathers, but the time, energy, money and peace of mind it saves both our clients and the system down the road makes it totally worth it.

This kind of approach, however, is not good for the following people:

  • Co-Parents who love drama;
  • Co-Parents who want to manipulate and control the other parent; and
  • Co-Parents who still carry a torch for the co-parent and on some level enjoy or at least need that interaction with someone they can’t be with anymore.

If one of the bullet points above sounds like you, feel free to continue to “re-litigate” your Custody and Visitation Schedule as long as you’d like, but we advise making sure you have a good, patient and well-retained attorney on call.

On the other hand, if you would prefer for everyone’s rights and responsibilities in a Co-Parenting situation be abundantly clear and unambiguous, and laid out just like an instruction manual for all to understand and follow, then we commend you and we’re here to help.

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This article contains general information and should not be construed as legal advice for you or your unique situation. If you would like to speak more about how you, as a committed parent or caring relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot