Questions about Mediation Agreement

[topnotchdad]

Dear Socrateaser,

DH and I went to mediation in Dec with BM and her husband.  We came up with an agreement which involved shared custody, right of first refusal, and a stipulation that both sides would consult with their attorneys/county enforcer regarding child support, and if mom and dad couldn't reach an agreement, we'd go back to mediation.

BM gave misinformation to county attorney in order to try to get child support computed at a higher rate.  County attorney advised BF to file petition for custody.  BM responed to petition with a motion for child support which included the misinformation.  

Court date was today.  In court, BM argued that she is primary custodian b/c she keeps child for 1 hour after school during BF's week (custody is alternating weeks).  BM also insists that step-parents "don't count" in right of first refusal, so when BF goes to night job, the child should legally go to BM's house, not be watched by step-mom.  

The mediation agreement is not worded to include or exclude step-parents.  It says, "If we cannot keep child for a period of longer than 4 hours, we will call the other one before making other childcare arrangements."  Step-mom has been in child's life for 6 years, and is actually the one who takes child to lessons, practices, etc. more than BM or BF.

BM called BF after court and offered him a "compromise" if he would pay her $XXX a month for child support, she would not move out of county like she had planned, and we will keep custody 50/50.  Her "offer" was higher than what what BF will probably have to pay if support is set through the courts.  We think she made this offer b/c she knows she wouldn't win custody in court.

Questions:

1)  Is a mediation agreement (which was a voluntary session, not court-ordered) legally binding?  In other words, since we signed it, does that mean that we can't change our minds about it and file for custody?

2)  Do you think the judge will consider the fact that BM is trying to deceive the courts in order to get more child support?  Are they allowed to take this into consideration when ordering support?

3)  Do step-parents count in right of first refusal?  

4)  Is BM's "private offer" extortion?

[socrateaser]

>Questions:
>
>1)  Is a mediation agreement (which was a voluntary session,
>not court-ordered) legally binding?  In other words, since we
>signed it, does that mean that we can't change our minds about
>it and file for custody?

A signed mediation agreement is a legal contract, however with regard to custody and child support, the court has the last word and can void the settlement if the terms and conditions violate public policy. That is, if the agreement allocates support or custody in a manner that the court finds not in the child's best interests, then the court can order the issues tried. If you mediated and the mediator is an attorney, that would add some weight to the settlement. If you mediated and you were both represented by independent legal counsel, that would add even more weight to the settlement.

If neither is true, then the court will probably wonder if both of you were really sufficiently well informed to make decisions as important as support and custody, and may determine that there was never mutual assent to the contract, and thereby set it aside completely.

>2)  Do you think the judge will consider the fact that BM is
>trying to deceive the courts in order to get more child
>support?  Are they allowed to take this into consideration
>when ordering support?

That's an entirely separate issue. If a party commits a fraud on the court, and you prove it, then you can probably obtain sanctions against that party, but it would be a one shot deal, and it would be arranged so as to not harm the child(ren), because the child's interests come before yours.

>3)  Do step-parents count in right of first refusal?  

If a party has custody and that party has four hours before he/she must offer parenting to the other parent, then during that four hours, the party may delegate guardianship of the child to whomever the party wishes -- stepparent, babysiter, doctor, lawyer, indian chief.

>4)  Is BM's "private offer" extortion?

Extortion is obtaining property of another by means of threat or fear of physical harm or exposure of private information. The other parent's offer to not fight for custody is not a threat of physical harm, because she is not threatening to hide the child, so that you will never see him/her again. Rather, the other parent is threatening to do something that she is legally entitled to do.

[mishelle2]

just my opinion, as dh has been in court every year of last 5 years... GET RID OF FIRST RIGHT OF REFUSAL!! it is a pain in the @$$ as you will each drive yourselves crazy trying to figure out if the other is gone more than 4 hours, then argue and end up spending money litigating something that no one can usually prove, except your dh ex may be able to supeona your dh timecard and prove hes gone nightly for more than 4 hours. We had it in our order then .. we couldnt get it out of there fast enough... pain in the kisser....

just a thought.. :)

[topnotchdad]

Dear Socrateaser,

In regards to your response to my question about first refusal:  

>>3)  Do step-parents count in right of first refusal?  

You wrote:
>
>If a party has custody and that party has four hours before
>he/she must offer parenting to the other parent, then during
>that four hours, the party may delegate guardianship of the
>child to whomever the party wishes -- stepparent, babysiter,
>doctor, lawyer, indian chief.
>

My question was really regarding AFTER the four hours.  Mediation agreement reads:  "We agree that if either of us is unable to keep Child for more than four hours when we are scheduled to have her, that the other parent will have the first option of keeping her before we make other arrangements for babysitting."  

The mediation agreement is "In the Matter of Mediation Between:  Mr. and Mrs. Dad, and Mr. and Mrs. Mom."  Both parents and step-parents signed the agreement, and the language in the agreement is geared towards both bio and step parents.

BM is saying that, according to her attorney,  the (Kentucky) law states that step-parents are baby-sitters, not parents, and so BF has to physically be with child or else first refusal applies.  Step-mom being at home with child would be "baby-sitting."   I searched KY laws and couldn't find this anywhere.

So my question is:
1)  Does BM have the right to insist that daughter stay with BM when BF is at work at night?  

2)  Should we agree to go back to mediation, but to change the agreement so that step-mom counts as a parent in right of first refusal?

(We wanted first refusal b/c BM tends to go on weekend trips and leave child with grandparents without telling us about it).

Thanks!

[socrateaser]

>So my question is:
>1)  Does BM have the right to insist that daughter stay with
>BM when BF is at work at night?  

Apparently your agreement has very specific language, so I can't give you an answer without reading that EXACT language. However, if your mediation agreement is not signed by a judge and entered/filed by the court, then it doesn't matter what it says, unless you have prior orders that permit you to enter into custody agreements without a court order.

Assuming that your agreement is actually entered by the court, then, absent a specific statute or case law citation from KY jurisdiction, whatever the order states, is exactly what it means. if it says "parents" then it means parents. A stepparent is not a party to a case, even if that stepparent signs a mediation agreement.

By signing the agreement, the stepparent agrees to be bound by the agreement's terms, which is enforceable in civil court under contract law, but when the court orders that agreement, only the exact words of the order will control. So, if your agreement says that "stepparents" can substitute after 4 hours, then they can, and if it doesn't then they can't.

If the other parent insists that statutes or case law favor her interpretation, then ask to see the statute or case law authority, and state that you have no intention of doing anything other than exactly what the agreement and orders state, until you see the statute or case law.

Most people who say that the "law gives me" X, Y, Z, usually don't know what they're talking about. Which is why there are lawyers.
>
>2)  Should we agree to go back to mediation, but to change the
>agreement so that step-mom counts as a parent in right of
>first refusal?

If the agreement doesn't include stepparents, and you want it to, then you'll have to go back and have it changed -- if you can, without a fight.