Notice provisions in custody agreements

Posted Wednesday, December 1st, 2021 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

Not enough care is given to drafting notice provisions in custody orders. There is an inherent tension between the needs/goals of the non-custodial parent and the custodial parent.

The non-custodial parent is typically concerned that the custodial parent will use the ability to schedule events for the child as a method of gatekeeping. There are certainly custodial parents who try to limit the other parent’s information about the child’s events. Sometimes these custodial parents want to minimize interactions with the other parent at the child’s events. Sometimes these parents simply want to minimize the other parent’s involvement in the child’s life. However non-custodial parents rightly want notice of the child’s events so they can be involved. Thus, they want a notice provision to insure prompt notification of all events involving the child, especially those events parents are entitled to attend.

However, the custodial parent does not want to be burdened with constantly having to provide notice and with the possibility of being found in contempt for any failure to provide prompt notice. This concern is especially acute given that the notice requirement may arise dozens of times a year and that some family court judges are imposing criminal contempt sanctions for its violation, believing that one cannot “purge” this failure to provide notice. This leaves many custodial-parents facing potential jail time for any failure to provide notice. Often, the only way for such clients to avoid jail is by agreeing to modifications to the custody order (such as more parenting time for the other parent or a reduction in child support) as a “settlement” of the contempt allegations. This is often relief the non-custodial parent could never achieve via a normal “best interests” analysis.

My preferred notice provision language evolves. The current favored draft is:

The parties shall utilize OurFamilyWizard (OFW) for notice and all non emergency communications regarding the children, as well as calendaring of events as set forth herein. The non-custodial parent shall pay both parties’ costs for OFW. OFW is not to be used for any non-child related issue. OFW is not to be used to harass the other. Neither party shall use vulgar or insulting language in communicating via OFW. The non-custodial parent shall obtain the children’s school schedule from their schools. For any event not scheduled within 48 hours of its occurrence, the party who schedules or first becomes aware of the event shall provide notice to the other party within 24 hours of scheduling. For events scheduled within 48 hours of its occurrence, each party shall provide the other immediate notice. For extracurricular activities in which there is a calendar, the custodial parent shall provide the non-custodial parent this calendar or a link to this calendar. For recurring events, notice only needs to be provided once and further notice only needs to be provided for changes in that schedule or cancellations. This notice provision does not apply to emergencies.

Notice of emergency issues is to be provided as soon as possible with that understanding that notice may not be able to be provided until the emergency resolves. The notice and OFW provisions of this paragraph and the paragraph above are civil only, and criminal sanctions shall not apply to any violation.

The language above is intended to solely address notice issues and assumes there is a separate provision authorizing the non-custodial parent to attend all of the child’s events to which parents are entitled to attend. I believe this language strikes a proper balance between the custodial parent’s obligation to provide information about the child’s activities with the non-custodial parent’s duty to obtain readily available information without burdening the custodial parent.

Further the civil contempt sanction (which includes the compensatory contempt of paying the other side’s fees) seems sufficient for a failure to provide notice. If the notice violations are extreme or extensive it can always be a basis to change custody. See S.C. Code § 63-15-240(B)(6), which makes a child custody factor “the actions of each parent to encourage the continuing parent child relationship between the child and the other parent, as is appropriate, including compliance with court orders.”

There are numerous reasons I prefer using OurFamilyWizard (OFW) over relying upon emails or text messages to provide notice. The most basic is the proof issue. It can be hard to reconstruct a series of text messages as one exhibit, especially when most folks only have the ability to screenshot these texts and email them as jpg files. Typically one cannot tell the time, and often not even the date, when the text was sent. Further there are often extraneous messages in the middle of a text string addressing notice issues. This makes it difficult to separate the notice messages from irrelevant texts. Finally, one can rarely prove when a text was read.

Email is better in that it is easier to preserve and typically email strings cover only a few topics. However it can be difficult to determine whether a response to an email came from a separate string. Further it is rare that one can determine when an email was actually read by the recipient.

OFW, which costs about $100 per parent per year, does an excellent job showing when calendering events were added to a calendar. It preserves all the child’s events in one place. It preserves message strings as one document. It shows not only when a message was responded to but when it was initially read (useful to demonstrate when a parent is simply failing to log onto the program or is unnecessarily waiting before responding). It has a tone meter designed to warn the parties if their language could be offensive. Using OFW messages to demonstrate notice or lack thereof is much more effective than mere emails.

Any time parents have difficulty communicating I recommend OFW’s use. I have found using it typically leads the parties to better communication. Even when it doesn’t, it demonstrates which party (and often it’s both parties) is responsible for the strained communication.

The reason I make the non-custodial parent pay for both parties’ share of OFW is that this is the parent who desires frequent and clear notice and the other parent who is expected to provide it. It seems fair that the party desiring notice pay for the costs associated with it.

Many of the notice provisions I see in family court orders are so general that a custodial parent could comply without giving the other parent sufficient time to attend the event. Others are so overbearing that the custodial parent is almost certainly going to be in violation eventually. There’s no right or perfect way to draft these notice provisions. However a few key goals should be:

• The custodial parent should be required to promptly notify the other parent of all non-emergency one-time events
• The custodial parent should be required to promptly notify the other parent of changes in the child’s providers
• The non-custodial parent should have the obligation to obtain public information such as school or sports schedules directly from the provider
• There should be some mechanism for notifying the other parent about emergencies
• Notice should be in writing, and not by text message. Ideally notice should be via a program designed primarily to assist co-parenting
• Violation of the notice provision should not trigger criminal contempt sanctions

One thought on Notice provisions in custody agreements

  1. Good ideas. I long ago lost count of the miseries which arise during the holidays when someone misses the Christmas Play.

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