Specificity versus flexibility in custody agreements

Posted Sunday, January 2nd, 2011 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Sometimes the more things you allow folks who don’t get along to argue about, the more arguments you are going to create.

There is always a tension between drafting custody agreements that allow for flexibility and drafting such agreements that anticipate all likely contingencies.  However, for high conflict custody cases a resolution that provides the parties’ too much flexibility is merely an invitation to future conflict and litigation.

I counsel my custody clients that, so long as they and the other parent agree to do something different than what is required in their custody order, no one is going to bother them.  That is because custody orders are not self-enforcing and the family court doesn’t monitor whether the parents are following them.  If an order gives father visitation on Mondays but the parents decide to give him visitation on Tuesdays instead, there is no need to modify the custody order.  Reference to the order only becomes necessary when the parties’ disagree about the time each is to spend with the child.

It’s almost impossible to draft an order that covers every contingency.  I’ve never figured out how to draft language that insures how makeup visitation will be resolved if a flight delay causes one party to lose visitation time.  I’ve never figured out how to draft language that insures a parent can take the child to significant family events (such as funerals, family reunions and subsequent weddings).  It’s not that such language can’t be drafted; it’s that in trying to draft language that covers such circumstances, one encounters myriad situations that cannot be anticipated and the difficulties created by the unintended consequences flowing from language on these issues outweighs the benefits such provisions might provide.

In doing custody agreements I like to build in a bit of flexibility in the hope that parents can behave cooperatively when circumstances would expect cooperative behavior.  I assume parents are sensible enough to know that a child should attend a parent’s wedding or a grandparent’s funeral.  This need for cooperative flexibility is especially important when the non-custodial parent has a variable work schedule, such as a professional athlete or a member of the armed forces. However, when the parties have a history of high conflict and animosity, such flexibility makes a bad situation simply impossible.

For example a custody order that gives a parent visitation “every-other-weekend from 6:00 p.m. Friday until 6:00 p.m. Sunday beginning March 15, 2002” needs little interpretation.  A law enforcement officer looking at that order and looking at a calendar could determine whether the weekend of January 7, 2011 is that parent’s weekend order not (my date calculator shows it is an even number of weeks, 460, so it is that parent’s weekend).  However if the custody order gives a parent “weekend visitation following any week father works a Tuesday to Friday shift,” that order requires reference to something outside of the order.  Reviewing that order, law enforcement officers will have a hard time deciding whether the child belongs with mother or father come January 7th.

Similar problems arise on provisions regarding visitation transportation.  An order that is silent on that issue is very workable if the parties can act cooperatively.  If the parties cannot work cooperatively such silence will merely create endless argument.  However an order that requires “father to handle all visitation transportation” become problematic if mother unilaterally moves 50 miles away.  An order that requires the parties to meet at a specific location for visitation exchanges becomes a problem if one parent is home sick with the flu, with the bed-bound parent demanding the other parent handle the visitation transportation and the other parent demanding they meet at the court-ordered location.  Thus specificity can both forestall conflict and create the possibility of conflict.

That said, I am amazed at the number of occasions in which a parent who clearly does not get along with the other parent brings me a custody agreement that demands interpretation and cooperation.  I understand the impetus that often leads to such parties and their attorneys entering these agreements: everyone is getting wearied by endless litigation and such vague agreements often represent a face-saving compromise or a semi-deliberate decision to defer resolution of issues the parties cannot agree upon but don’t want to risk a judicial determination on.  However if these unresolved issues were creating conflict before there was a final court order, obtaining a final order that leaves these issues unresolved will not end the conflict.  Instead the conflict will fester until an enforcement action leads to judicial interpretation of the order or until a subsequent agreement or custody trial resolves the conflict.

Unless there is an expectation that subsequent events (such as a child’s impending emancipation or a party’s impending life change) will make a conflict moot, parties who are in high conflict custody cases are acting counterproductively in reaching agreements that leave substantial controverted issues unresolved or open to conflicting interpretations.  While such resolutions may temporarily end the expense and stress of litigation, they do so by merely deferring the litigation expenses while moving the stress into a non-judicial setting.