Court in a few days and need advice

[ccmidaho]

Dear Soc,

Father and mother of 20 month old have court date in just a few days. Motion is to modify visitation. (father has little time with son now due to earlier "infant" agreement).  We've spent the last 8 months coming up with a residential schedule agreement in mediation and we are almost there with the exception of a few points. Mother wants Father to handle all transportation when there are exchanges until child is 3. Father proposes an equal transportation burden. (they live about 20 minutes apart in the same town).   The 2nd point of disagreement concerns holidays and vacations. Holiday schedule is fairly standard with many of them rotating between parents each year. Vacation is that each parent has two weeks a year of vacation. However, mother proposes that father be restricted from taking the holiday or vacation days to certain consecutive amounts. For example, father can have son for no more than 2 overnights for vacation or holiday prior to age two, from age 2-3 father can have child for no more than 3 consecutive overnights, and so on and adding an overnight each year. Mother proposes that these restrictions do not apply to her. So essentially this means mom can take a week vacation two times this year and father can take a 3 day vacation only.  Mom gets to spend all of thanksgiving weekend on her year with child, Father only gets 3 overnights - and so on.

She's said, "take it or leave it". We'd like to leave it so here are my questions.

1. If we go to court with 90% of a written agreement in hand, will the judge just decide on these two remaining issues or is the whole agreement in question since we are at court and either side can propose something entirely different?

(We do not want to risk losing the rest of the agreement that we've spent so long getting to so please advise as to whether we should just cave in)

2. Both attorneys have assumed that a settlement was happening for the last month so neither is really prepared for court in my opinion. If the agreement doesn't get signed and we end up in court that day, do the attorney's just wing it? Please tell me what you think we can expect.

Thanks for your help.

[socrateaser]

>She's said, "take it or leave it". We'd like to leave it so
>here are my questions.
>
>1. If we go to court with 90% of a written agreement in hand,
>will the judge just decide on these two remaining issues or is
>the whole agreement in question since we are at court and
>either side can propose something entirely different?

An agreement requires mutual assent to its terms and conditions. Since you have not signed this agreement, there is no credible evidence of mutual assent, therefore there is no agreement whatsoever, and the judge will have to hear and decide every issue.

However, your facts show that you are very close and the sticking points are not really significant. So, what will probably happen is, you will go to the courthouse, and before trial begins, the judge will call the attorneys into chambers and then they will all pretend to have had a really important discussion, and then the attorneys will come out and tell you both that the judge is "highly likely" to do such and such, so the attorneys advise that you settle for such and such and not waste your money or the court's time.

I can practically guarantee that this is how it will go down, unless you decide to settle sooner. However, I cannot advise that you "cave in," because that implies that you surrender and lose everything. If you already will not receive 50/50 custody, then as a practical matter you have already lost most of everything, now haven't you, i.e., you've lost the opportunity to raise your child, and that's really all that matters.

As for the financial considerations, most State guideline support laws are heavily skewed towards the primary caretaker, so a custody order that grants a 60/40 split has almost the same financial impact as an order with a 100/0 split.

Bottom line: if your attorney hasn't advised that you will clearly win primary custody at trial, then you may as well settle for less and save some legal fees, because the fat lady has already sung.

>2. Both attorneys have assumed that a settlement was happening
>for the last month so neither is really prepared for court in
>my opinion. If the agreement doesn't get signed and we end up
>in court that day, do the attorney's just wing it? Please tell
>me what you think we can expect.

Most family law attorneys "wing it," at trial, because, most family law attorneys know that whomever has temporary primary custody of the children will win the case, unless the primary custodian can be proven to be a VERY bad actor (e.g., doing something criminal that negatively affects the child's interersts, or seriously mentally disturbed, etc.).