Changing the visitiation schedule

[ccmidaho]

Facts: (i've written to you several times so you might recall this)
Idaho. 13 month old child. Mother has primary physical custody. Father has child 3 times a week for a couple of hours each time. No overnights. I'm Father's girlfriend.

After reading everything on the Sparc website, we now realize that we made many mistakes in signing the original custody agreement. The mother refused to sign anything that Father wanted when child was born so we stupidly conceded to her wishes and we put specific language in the agreement that we thought would require her to gradually change the amount of time with the father.

For example, the agreement says "overnights may start between 12-18 months".  Mother agreed to the intent of this statement verbally but now her laywer says the use of the word "May" means there is no agreement for anything. She is completely going back on it and says there will not be any overnights. Period. She has also not agreed to any increased amount of time beyond what was originally agreed to 8 months ago.

Agreement says that  "because of xxx's age we agree that he has a home base with mother and he shall be with father in gradual increased amounts of time ..."  (agreement goes on to specify the actual schedule to begin with)

Agreement also states:
Future Modifications: we agree that a disagreement between concerning the residential schedule arrangements constitutes a substantial and material change in circumstance sufficient to justify a modification of the residential schedule.

Questions:  
1. Is the last clause sufficent to get the court to review the schedule  as obviously the father does not agree to the current schedule based on the fact that overnights will not start  as planned and there has been no increase in time?  

2. Given that she has not agreed to any increased amount of time whatsover, is she violating the agreement or was it too vague to hold water?

3. How do we inform the Mother that we intend to petition the court to change the schedule unless she agrees to begin a regular schedule of increasing overnights? (in the past you have advised us never to threaten her about court)

[socrateaser]

>Questions:  
>1. Is the last clause sufficent to get the court to review the
>schedule  as obviously the father does not agree to the
>current schedule based on the fact that overnights will not
>start  as planned and there has been no increase in time?

File for a clarification order. Opposing counsel is snowing you. May means "permissive," but it must still be interpreted in context. You can argue that your understand was X, the mother will argue her understanding was Y, and the judge will resolve it somewhere in between. That's how you should negotiate with the attorney.

The wild card is the judge's personal opinions on young children issues, and the only way to know that in advance is to either sit in court and listen to the judge rule on similar cases, or find an attorney who has experience with the judge.

>
>2. Given that she has not agreed to any increased amount of
>time whatsover, is she violating the agreement or was it too
>vague to hold water?

Ambiguous. You're not gonna get a contempt, but you can certainly get a clarification from the court.

>
>3. How do we inform the Mother that we intend to petition the
>court to change the schedule unless she agrees to begin a
>regular schedule of increasing overnights? (in the past you
>have advised us never to threaten her about court)

You just state that you would like to increase your time with the child, and that if you cannot reach an amicable agreement that you will ask the court to resolve the controversy.

[ccmidaho]

Thank you for your reply. I have another question. This portion of the agreement below was interesting to me given what I've read about what constitutes "substantial change in circumstance."

Future Modifications: we agree that a disagreement between concerning the residential schedule arrangements constitutes a substantial and material change in circumstance sufficient to justify a modification of the residential schedule.

Questions:
1. Can the two parties agree to what constitutes a "substantial change in circumstance" ahead of time in this manner and the court will be obligated to use this criteria?  

2. Father wants to use this clause to be the reason to submit an entirely new schedule that is based on a step of plan of time with child. Will this fly with the court?

[socrateaser]

>Questions:
>1. Can the two parties agree to what constitutes a
>"substantial change in circumstance" ahead of time in this
>manner and the court will be obligated to use this criteria?

If the agreement was ordered by the court, then yes. Otherwise, no, i.e., the issue is a matter of law to be determined by the court.

>2. Father wants to use this clause to be the reason to submit
>an entirely new schedule that is based on a step of plan of
>time with child. Will this fly with the court?

See above.