Mom is backing out of mediation settlement - HELP!

[chrisatlanta]

Afternoon everyone.

To make a long story short I have a 5 yr old daughter with my daughters mom, and we were never married.  At the time our daughter was born she was automatically awarded sole custody of our daughter because that's how the courts work.  I didn't fight it because we were dating and we lived together for years and raised our daughter together.  I'm a stay at home Dad working from my home office, so, I had a huge hand in raising our daughter with her Mom.  One year ago I caught Mom with another man, she ran off, married him one month later and enforced the 2002 court order granting her sole custody....which of course had never been enforced before because we were together.  That court order states I only get to see our daughter every other weekend and basically have no legal rights.  So, for the next 10 months I fought for joint physical custody at a minimum.

We entered into mediation back in September '06 and after 6 hours of mediation Mom agreed to joint physical custody.  We all signed off on the agreement including her lawyer, my lawyer, the mediator, Mom and me.  The last 5 months have been phenomenal and I have my daughter every other week and responsiblilities for education/religion, while Mom had responsiblilities for extracurricular/health.

Two day ago I received notification that Mom has fired her attorney that represented her during mediation, hired a new one and filed a 12 pg motion against the mediation settlement she agreed to.  Her claim is that she really didn't know what she was signing, that she was intimidated into doing so, etc.  The really frustrating thing about this whole ordeal is that the settlement agreement was never finalized by the judge in the case because the judicial system here is so terribly slow!  It's been 5 months now and the judge never signed off on the agreement because of backlog and because he never signed off on it then it's not binding.  Her attorney sent me a letter stating that since the mediation was not binding and has not been finalized then we are to follow the previous court order from 2002 which was signed and finalized.

At that point I was forced to hand my little girl back over to her mother or face legal consequences!!!  We have asked for a court date to present our case to judge and finally get him to hopefully sign off on it, but that may be months from now because of the slow process here.  At that point the judge might say that there's no sense in moving our daughter back to the settlement agreement and he may not uphold it...

I'm so miserable and depressed I do not know what to do.

Advice/suggestions on how to enforce this and make the judge sign it???

[notnew]

Did you attend any hearing where the judge was informed there was an agreement drawn up in mediation and was an order drawn up for the judge's signature?

If so, I think you have something to stand on here.

I highly suggest you go to the Dear Socrateaser forum on this board and post your situation to him.

I also believe you need to file an emergency filing keeping the meidated agreement in place because this is what is in the best interest of the child and she is accustomed to the arrangement that has been working.

Your exgf is a nut job and you need to get a competent attorney. Your last attorney is a problem because he/she never made sure the order got signed off in the stipulated amount of time.

BTW - there are a lot of variables here. A lawyer is best way to go - Dear Socrateaser is an attorney and can point you in the right direction. Read and follow his mandatory guidelines or he won't answer your questions. But - he is very good.

I am sorry you are going through this.

[mistoffolees]

Get an attorney and file for an emergency hearing on the basis that your daughter was operating with shared physical custody on the basis of the agreement with your spouse and your spouse is trying to change that.

Basically, you want to argue that the last 5 months are the status quo (shared parenting) and the ex is trying to change it - which would be harmful for the child.

The other thing to check is whether the mediated agreement was ever filed with the courts. If it was filed, it may be binding even if she changed her mind before the final decree was handed down. Again, an attorney can tell you.

[notnew]

Also Socrateaser can help too. I wish you and your child the best.

[dsm]

If the mediation is pending being signed by the judge, then there is an open motion that should be heard BEFORE her latest stint.

But definitely have a lawyer get into this with you.  It doesn't sound like this woman has any argument stating that the child is in danger or that the mediated schedule is detrimental.....it's all about the mom - not the child.  

5 months is quite a bit of time to have a new status quo.....and I would argue even further back than that given that you were in the home, stay at home dad......

Good luck!!!
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dsm - 36; DH - 39; SD - 17; LO - 11; BB - 3
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3 Cheap Entertainment cats - Sam,  Snoop & Dagger
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Live, Love, and Laugh
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I'm not a lawyer, so my advice is simply my reaction and humble opinion to situations.  Any direction given should not be taken as a guarantee of anything.

[HelpingHands]

Combine all that with the fact the mother states she signed something she had no idea what it was. Can we say incompetant, poor judgements, instability, etc?

The mediator drew up the papers, was a witness to everything and got both parties to sign to what THEY agreed to in the sessions, right? What exactly did she not realize she was agreeing to?

Unfortunately, I know first hand that what they agree to in mediation doesn't hold water if they back out. Ex did that too. Mediation agreement isn't legally binding until signed off by the judge, I believe.

You could have the atty question the sudden change of heart and why she feels that what she originally agreed to and the children have been accustomed to for the last 5+ months should suddenly be changed.

Have the children had problems? Have the children been doing better/worse, indifferent?

Best interests to the children is to maximize their time spent with both parents. That's the best interest.

[HelpingHands]

Combine all that with the fact the mother states she signed something she had no idea what it was. Can we say incompetant, poor judgements, instability, etc?

The mediator drew up the papers, was a witness to everything and got both parties to sign to what THEY agreed to in the sessions, right? What exactly did she not realize she was agreeing to?

Unfortunately, I know first hand that what they agree to in mediation doesn't hold water if they back out. Ex did that too. Mediation agreement isn't legally binding until signed off by the judge, I believe.

You could have the atty question the sudden change of heart and why she feels that what she originally agreed to and the children have been accustomed to for the last 5+ months should suddenly be changed.

Have the children had problems? Have the children been doing better/worse, indifferent?

Best interests to the children is to maximize their time spent with both parents. That's the best interest.

[mistoffolees]

I agree with all your advice. However, I would disagree that the mediation agreement is worthless. If it were me, my argument would be that the two parties had agreed that shared parenting was in the best interest of the child in the presence of the mediator and after discussing all the issues. That clearly addresses the state of mind of both parents.

Now, you have to ask why the children should be put through another change simply because of the whims of the other parent. Unless she can cite some significant change in circumstances, her willigness to change her mind for no apparent reason means that she can't be trusted to supply the stability the child needs.

That argument by itself won't win the case (parents DO have the right to change their mind, after all), but combined with everything else (5 months of shared parenting, etc), it might win. Basically, set yourself up as the stable one who's trying to provide a nice, stable, steady environment for the kids while the ex is flip-flopping around and trying to throw the kids lives into an uproar after they've finally settled down.

Unless there's more to the story than has been presented here, that seems like a pretty strong position.

[HelpingHands]

Exactly.

I only say that it's basically worthless, because of my past experience.

>I agree with all your advice. However, I would disagree that
>the mediation agreement is worthless. If it were me, my
>argument would be that the two parties had agreed that shared
>parenting was in the best interest of the child in the
>presence of the mediator and after discussing all the issues.
>That clearly addresses the state of mind of both parents.
>
>Now, you have to ask why the children should be put through
>another change simply because of the whims of the other
>parent. Unless she can cite some significant change in
>circumstances, her willigness to change her mind for no
>apparent reason means that she can't be trusted to supply the
>stability the child needs.
>
>That argument by itself won't win the case (parents DO have
>the right to change their mind, after all), but combined with
>everything else (5 months of shared parenting, etc), it might
>win. Basically, set yourself up as the stable one who's trying
>to provide a nice, stable, steady environment for the kids
>while the ex is flip-flopping around and trying to throw the
>kids lives into an uproar after they've finally settled down.
>
>Unless there's more to the story than has been presented here,
>that seems like a pretty strong position.