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Recent legislative changes demonstrate a clear preference for private ordering in child custody cases. There is an increased recognition that parents are in the best position to determine what type of arrangements will work for their children. Custody agreements as opposed to court-mandated plans often provide a better opportunity for parents and children to establish a new and, it is to be hoped, healthy life after separation and divorce. In this column we will address some of the future issues that might be considered in the drafting of custody agreements. There are of course as many variations as there are families, and many changes are truly unanticipated. But careful planning can help to avoid future conflict. Perspectives on a key area: geographic relocation One area, which often is the subject of a future change, is the matter of a subsequent geographic relocation. Of course, this must be approached from two perspectives. For the parent who wants to restrict future moves, it is advisable to require that any intention to change the child’s residence requires adequate advance notification to the other parent. How much time is adequate will depend on how much time the other side is willing to concede-30 days should be the minimum. Also the type of notification should be detailed; our preference is for a written notice so there is no question. The parent who will be remaining in the locale may also ask for a radius restriction, prohibiting moves beyond a designated number of miles or outside designated counties/locales. The parent who is remaining if there is a relocation restriction or advance notification included should have a limiting clause indicating that the mere fact of addressing relocation cannot be understood to imply advance permission for such a move. When it comes to considering future moves, the parent who thinks a move is possible for her approaches drafting concerns with different goals. When representing that parent, silence may be the best approach. If that is the case, good judgment dictates that when closing the case with your client there should be some warning that good judgment does not permit a secret move and that there should be some advance discussion or voluntary notice to the other parent. In fact, many states by statute now require notification to the other parent. Another approach for the parent who anticipates a move is to get advance permission to move within a geographic radius that would be workable, even if the access schedule had to be renegotiated. Another issue that comes up in terms of future changes is what to do when a child gets older and wants to write his own version of the agreement. The non-primary parent may want to have a clause inserted that permits the child to select a residence in the future although in our experience this is rarely permitted by the primary parent. Instead, a compromise may involve allowing additional input from the child as the child matures, ultimately permitting the child to have a serious “say-so” in the schedule. Additionally, if there is an agreement that permits significant changes in the schedule, the child-support arrangements should be considered. For example, if the child refuses to spend time with the parent who is the support payor, does that affect the amount of support? Again some states have addressed this issue by providing for automatic abatement of child support when there is a custodial change while other states are silent on the question. When drafting custody agreements, future controversies affecting the child are often the subject of negotiations and clauses. First of all, minimal day-to-day issues should be excluded. If examples are necessary, one might cite the determination of whether to send a child to school when the child has a heavy cold. The future issues that pose difficult drafting considerations involve major issues. In defining them, negotiate for the most inclusive listings. Try to include not only the traditional issues (child’s health, education and welfare), but other contingencies such as the decision as to whether a child can get a learner’s permit to drive, use an automobile or an ATV, engage in contact sports, change schools or participate in significant religious activities such as first communion or a bas or bar mitzvah. The issue of who will act as a guardian for the child in any potential litigation should also be included. One future drafting issue which is very difficult to anticipate is the occurrence of various problems caused by the introduction of stepparents and the resultant blended family. What happens when the child has serious conflicts with a stepparent? What do you do when there are issues between the child and stepsiblings? In an ideal situation, the biological parents would sit down, talk and try to come to a joint decision as to what to do to protect the child. Perhaps the practitioner can include a clause that obligates the parents to attempt to reach a joint decision if future family situations cause the child to experience distress. Another approach for these situations would be to include a future therapist for the child and to indicate that either parent could enlist the assistance of the designated therapist. It would be best to then indicate that the other parent would cooperate with the child’s therapist if so requested. When thinking about the problems which step-families could cause, the least advisable situation would be one that permitted a child who experiences distress just to be able to change residence and move to the other parent’s home if the blended family causes problems for the child. If the child is an older teenager, such a result may be inevitable, but it should not be an automatic result. That a step-parent might be involved with the child in the future raises another level of concern for drafting which is probably rarely addressed. Should there be some minimal entitlement for a step-parent to have access to the child in the event that the biological parent (the stepparent’s spouse) dies or becomes incapacitated? What happens if the child returns to the other parent and the stepparent wants some contact? Some of these problems are so difficult to anticipate that drafting resolutions becomes almost impossible. The general requirement for joint consultation and a good-faith attempt to reach a unified approach may be the only thing that can be included in any agreement. Assuming that the future issues have been sufficiently defined, then how do you handle discussions and impact? We believe that it is dangerous just to say that the parties will jointly confer and agree on these future significant issues. Of course, if you have the kindest clients perhaps that will work or if one of the parents just wants to know about things and has never been very interested in input that may be enough. Most of the time, however, areas of future controversy on issues affecting the child require a mechanism for conflict resolution. While no one wants to think about running off to court, we believe that access to court should never be barred and it sometimes is best that once it is known that there is no agreement on a serious issue, expeditious appeal to a court for resolution may be the very best thing for all concerned. If you agree, then a clause that indicates that when there is no agreement, either party may bring the issue to a court of competent jurisdiction is appropriate. We have seen agreements that include different conflict-resolution devices. For instance, the child’s therapist may be designated in an agreement to resolve future disputes. However, with this as with other resolution devices that do not involve access to court, many jurisdictions properly indicate that the parties cannot deprive the court of its parens patriae responsibilities and that a parent who has included such a bypass resolution may be able to litigate the issue nonetheless. For future issues, lawyer’s opinion could be valuable In anticipating future issues of controversy, the parents may include the child’s current lawyer as a person whose opinion is sought in the first instance before proceeding in court. However, the child’s lawyer should consent to this and the drafters may also want to name an alternate to serve as the child’s lawyer if the designee is unavailable or unwilling to so serve. The lawyer’s fee should be described if possible in any agreement as well as an understanding concerning the allocation of fees between the parties. Because the issue may not arise until the distant future, the fee for the child’s lawyer may just indicate that it be set at the lawyer’s then-prevailing hourly rate charged to retained clients. A new approach to scheduling conflicts seems to be emerging on the West and East coasts of the country, although we have some doubts as to its usefulness and whether or not it is merely a new cottage industry annexed to high-conflict custody cases. This is the use of parent coordinators to handle schedule conflicts and perhaps other conflicts as well. Again, if a parent is deprived of her or his right to a day in court to litigate issues in court, we would not endorse this concept. Finally, the issue of where future disputes should be heard may be the topic of drafting in a custody agreement. The party who is relatively certain that she or he will remain in the jurisdiction which issues the custody agreement and order will probably argue for continued jurisdiction in the issuing state. This is generally in conformity with the Uniform Child Custody Jurisdiction Act and usually in line with the newer Uniform Child Custody Jurisdiction and Enforcement Act, the later of which is in effect in more than one-half of the United States. In addressing jurisdiction for future disputes, one should bear in mind the jurisdiction act commentary and cases under the act that indicate that the parties cannot confer jurisdiction where none exists. Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City; Barbara Handschu is a solo practitioner in Buffalo, N.Y.

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