Getting stipulation entered as court order

[topnotchdad]

Soc,

Parents were never married, both parties live in KY.

No custody agreement was in place until 2006, when child was 7.  Both parents (and step-parents) went to mediation, and agreed that as long as both parents remained living in the same school system, they would keep custody as 50/50 (every other week).

In the mediation agreement, a time-sharing plan was also outlined in case one parent decided to move to a different county (BM's family owns land in a neighboring county, and BM claims they plan to move there).  It was not decided in mediation which parent would be the weekday vs weekend parent in mediation, just outlined how the child's time would be divided, and that parents would return to mediation if either parent moved, to decide which parent would have child during the week.

After mediation agreement was signed, BM started saying that BF would be the weekend parent, and she would not compromise.  BF spoke with an attorney about his dissatisfaction with the mediation session (mediator allowed BM and her husband to yell and curse at BF during the session), and about how BM was now insisting that she would be the weekday parent, end of discussion.  Attorney said given BM's history and mental health issues, BF should sue for full legal & primary physical custody.

At the hearing, judge did nothing but scold parents for going to court so soon after mediation, and told parents to take 2 weeks to "work it out" and if they couldn't reach an agreement, come back to court.  BM agreed not to move, and parents have exercised 50/50 ever since.

Now BF is considering moving to the same area where BM's family owns land.  Basically, BM says she will move if BF moves, and BF says he will move if BM moves.  Neither parent trusts that the other will actually relocate.

Questions:

1)  Since the parents came to an agreement after the original attempt at gaining custody, and never went back to court, does that mean that there is no "court order?"  BF and/or his lawyer were never sent any documents to indicate that the judge had entered the mediation agreement as a custody order.

2)  If the parents sign an agreement stating that they intend to move to X county within X number of months, and that custody will remain 50/50 after they move, unless there is a significant change of circumstances, will it be binding?

2b)  Can the stipulation include a "penalty" if one parent decides not to move (i.e.  they would become the weekend parent and/or provide the extra transportation caused by the move).

3)  On this note, if there is no official "court order," if the parents write up a parenting plan, including child support, and both sign it, can they have it entered as a binding custody agreement?

4)  Would said stipulation and/or parenting plan have to be in the language that court orders are written, or can it be in "plain English?"

Thanks!

[socrateaser]

>Questions:
>
>1)  Since the parents came to an agreement after the original
>attempt at gaining custody, and never went back to court, does
>that mean that there is no "court order?"  BF and/or his
>lawyer were never sent any documents to indicate that the
>judge had entered the mediation agreement as a custody order.

If there are no temporary orders and no final order re custody, then both parents have joint physical and legal custody of the child, just as if they were still in an intact marriage. Unless, the parents were never married, in which case mother has sole everything.

>
>2)  If the parents sign an agreement stating that they intend
>to move to X county within X number of months, and that
>custody will remain 50/50 after they move, unless there is a
>significant change of circumstances, will it be binding?

Not unless or until the court signs the agreement.

>
>2b)  Can the stipulation include a "penalty" if one parent
>decides not to move (i.e.  they would become the weekend
>parent and/or provide the extra transportation caused by the
>move).

Yes, but the court will never enforce it. Public policy requires the court to determine the child(ren)'s best interests before entering a custody order.

>
>3)  On this note, if there is no official "court order," if
>the parents write up a parenting plan, including child
>support, and both sign it, can they have it entered as a
>binding custody agreement?

If there is a pending custody action and the parents agree, then they can file their stipulated agreement, and the court will probably sign it. But, sometimes not. Depends on whether the agreement violates some underlying public policy or is manifestly not in the child(ren)'s best interests.

>4)  Would said stipulation and/or parenting plan have to be in
>the language that court orders are written, or can it be in
>"plain English?"

Plain english is fine, but there are certain unavoidable legal terminologies which if not present or used differently without express definition, could create problems later on. Also, the agreement must not violate any law.

Bottom line. If you write the document yourself without an attorney, it's almost certainly gonna blow up on you.

[topnotchdad]

BF doesn't want to go back to court to sue for full custody at this time, as he acknowledges that, while BM is not exactly "mother of the year," it is important for child to maintain a relationship with BM, BM's other kids, and BM's family.

Also, BM's family is friends with the judge in our town, so BF doesn't feel he has much of a chance of getting full custody at this time.

1)  So, since the parents came to a verbal agreement and never went back to court, you're saying that technically, BM has sole custody?  This seems contrary to what our attorney has told us in the past.

2)  So regardless of whether anybody moves anywhere, BF should sue for 50/50 custody, so that technically BM doesn't have everything anymore?

3)  Would BF have to "sue for 50/50 custody," or can BF and BM present a shared parenting plan to judge and ask him to enter it as custody agreement.  Isn't this what divorcing couples do if they agree on their parenting plan?  BF would have a hard time explaining to BM that he's not asking for anything more than what he has now.

4)  As for the "plain English" question I asked before, can we just use one of the examples of shared parenting plans from this or other sites, and tailor it to suit our needs?

Thanks!

[socrateaser]

>1)  So, since the parents came to a verbal agreement and never
>went back to court, you're saying that technically, BM has
>sole custody?  This seems contrary to what our attorney has
>told us in the past.

You said there is no custody order in place and the parents were never married. If both are true, than BF has no custody rights.

>
>2)  So regardless of whether anybody moves anywhere, BF should
>sue for 50/50 custody, so that technically BM doesn't have
>everything anymore?

You need to establish your legal parental rights on some level. If you don't, you won't have any.

>
>3)  Would BF have to "sue for 50/50 custody," or can BF and BM
>present a shared parenting plan to judge and ask him to enter
>it as custody agreement.  Isn't this what divorcing couples do
>if they agree on their parenting plan?  BF would have a hard
>time explaining to BM that he's not asking for anything more
>than what he has now.

You can stipulate with the other parent to whatever you want as long as what you want is legal. So if you are reasonable about your agreement, then it's probably legal. No promises.

>
>4)  As for the "plain English" question I asked before, can we
>just use one of the examples of shared parenting plans from
>this or other sites, and tailor it to suit our needs?

I have absolutely no knowledge of anything on this site other than what's on my message board. So, I cannot recommend or discredit any of the samples. However, if you don't use a template which is commonly used in VA, the court will probably refuse to sign it. So, go to the courthouse and ask to see the family law facillitator (who is supposed to be there under federal law, but may not be in small counties/townships/parishes. If there isn't one there, then you could probably find one in one of your large counties. So it may be worth a drive.

You will probably have no luck getting them on the phone -- but you could call around.