Should Parents Be Allowed To Make Custody And Visitation Agreements Without Being Challenged?

Posted By Pasadena Family Law Attorney || 26-Jul-2010

In theory, it is best when parents with minor children are able to work out a custody and visitation arrangement on their own when they separate and/or divorce. After all, the matter involves their children/family and wouldn't they know what is best for their particular situation? Not always!

I was recently representing a father of three (3) minor children in a divorce case in which he and his wife entered into an Agreement under which he would see his children every other Friday from 7:00 p.m. to Sunday at 4:00 p.m. He entered into this Agreement in Conciliation Court, which is the mediation program that parents are required to attend in Los Angeles County before going into court on a matter relating to child custody and visitation. For those who are unaware, lawyers are not permitted to participate in Conciliation Court.

Before my client 's Conciliation Court appointment, I warned him against entering into a Custody and Parenting Agreement that he would not be able to live with for a long time. As requested, my client contacted me as soon as he left the courthouse. During that conversation, he informed me that he had entered into a Conciliation Court Custody Agreement and Parenting Plan. As soon as he finished describing the terms of the Agreement, I asked him whether or not he realized that he would not see his children for twelve (12) days between each of his alternate weekend visits. I commented that most, if not all, of his children's friends will see their fathers on a more frequent basis, regardless of marital status. I explained to him that his children will most likely assume that he sees them less than other father's see their children because he loves them less and that this would most certainly negatively impact his relationship with them. After our conversation, he agreed with me that his children would most likely perceive their relationship with him in the way in which I had described, especially since he resided in close proximity to them. He then requested that I file an Objection to the Conciliation Court Agreement and Parenting Plan. As discussed in my article from the September/October edition of the San Gabriel Valley Psychological Association Newsletter, I informed him that the Court might refuse to acknowledge the Objection to that Agreement.

I immediately contacted his wife's attorney, who had not yet been informed of the fact that they had reached an Agreement regarding the custody issues. I explained my concerns to him and he immediately acknowledged the problem and validated my concerns. I requested that he see if we could modify the Agreement to include some visitation during the week. He told me that he would discuss the matter with his client. Meanwhile, I filed an Objection to the Conciliation Court Agreement and Parenting Plan. As an additional complication, the hearing on this matter was scheduled for the next Court day and therefore it was virtually impossible to resolve the matter prior to that hearing. As a result, I suggested that everyone arrive at the Courthouse at 7:00 a.m. the following morning (1 ¾ hours before the scheduled hearing) in order to try and resolve the matter without judicial intervention. Everyone agreed to my proposal and we were able to settle the matter outside of Court. With the assistance of their attorneys, the parents were able to work out a parenting plan that suited their particular situation and which was in the best interest of the children.

After entering into that Agreement, which was signed off by the Court and made into an Order, I received a copy of the Conciliation Court Agreement and Parenting Plan which the Court also signed off on, even though we had subsequently resolved the matter differently and I had filed an Objection to that Agreement. Under the circumstances, the fact that the Court signed off on the Conciliation Court Agreement and Parenting Plan in that case is of no significance. However, it is indicative of the fact that courts tend to disregard Objections to such Agreements. Although I knew and had previously written about such concerns, it bothered me that courts sign off on Agreements entered into by parents which most certainly are not in the best interest of the children and will negatively impact the children's relationship with one or both parents.

Over the years, I have come across many situations in which parents enter into Custody and Visitation Agreements which are clearly detrimental to the children. Nevertheless, the courts sign off on such Agreements because they are "Agreements." On several occasions, I have seen parents with multiple children enter into Agreements whereby each parent would have 100% of the time with particular children of the relationship in order to "avoid conflict with the other parent and to protect the children from being exposed to such conflict." In other words, rather than learning to co-parent, the parents decide that it is in the best interest of the children that they have a relationship with only one of the parents and that their relationship with their siblings in the other parent's custody be severed. Such a parenting arrangement is by no means in the best interest of the children. Under such circumstances, the children not only need to deal with their parent's divorce, but also with the loss of one parent and certain of their siblings. Although courts would never make such orders, they do sign off on such Agreements, thereby making them binding Orders of the court.

Thus, while it is best when parents with minor children are able to work out a custody and visitation arrangement on their own when they separate and/or divorce, some parents need assistance in determining what is in the best interest of the children. Without such assistance, parents can do things that are very detrimental to their children, often without even realizing it. Should Judge's just sign off on such Agreements, without even addressing the possible consequences? Who protects the children from such parents?