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Avoiding the Litigation Co-Parent Trap

When you are no longer in a romantic relationship with the other parent of your child, one of the worst things you can do to your child is getting stuck in the litigation path with the other parent. Once you start down the litigation trap, it is common for one of the parents to become vindictive and retaliatory in nature. Unfortunately, this can lead more litigation which can sometimes spin out of control.

In a shared parenting time arrangement, it is hard enough for your child to go back and forth between households, because of different cultures, religions, house rules, finances, etc. Co-parents that continually litigate in court have children that are even more stressed and anxious. Children of parents who continually go down the litigation path are more likely to end up with psychological problems, drug/alcohol addiction issues and criminal charges. The punishment can be incarceration or death for the child.

The following are some suggestions for co-parents to avoid falling into a pattern of litigation.

Do Not Draft Your Own Settlement Agreement

Whether you are going through a divorce or custody proceeding (allocation of parental rights), it is very beneficial to have a lawyer draft your settlement agreement (Parenting Plan) for you (as explained below).

It may seem counterintuitive to have lawyers involved to avoid litigation (even when you and the other party agree on the settlement terms). However, oftentimes, when parents draft their Parenting Plan on their own, there are many ambiguities in the document that leave the document wide open to interpretation. This is problematic, because the document that the parents are supposed to rely on in the event of a dispute is too vague to enforce. This often leads parents down the path of litigation.

Many parents want some flexibility built into the Parenting Plan, which can be beneficial for the children. However, there should be default terms set so that there is no disagreement in the event of a dispute. If the terms are too indefinite (which is common when parties draft their own Parenting Plan) parents may end up litigating to determine what the Parenting Plan actually meant. Good lawyers who practice family law are trained to (1) listen to their client about what the agreed upon terms are; (2) take the time to advise about the missing terms and loopholes; (3) correct them with specific language (based on the terms that the parents agree on); and (4) help the parties come to additional agreements based on the agreements they have already reached.

Participate in Mediation in Good Faith

Part of your job when you are going through a divorce or custody proceeding (allocation of parental rights) will usually include participation in mediation with a neutral third party who helps both parents try to settle their case. Neither a mediator nor the court can force you to agree on the disputed issues in your case. However, most jurisdictions require that you participate in mediation.

When you meet with the mediator, you should have an open mind about different ways to settle your case. Keep the children in mind at all times and think about ways to resolve your differences that are in the children’s best interest. You can attend mediation with your attorney or without your attorney. Parents should make decisions about how to parent their children, if possible, rather than having the Court make those decisions for you. If you make agreements about your child in mediation, the Court will not have to make the parenting decisions for you.

Even if you resolve only part of your case in mediation, that will cut down the number of issues that the Court will have to resolve for you. If you resolve all or most of your case outside of court, that usually decreases the contention between the parents and leads to a greater chance of not continuing down the litigation path.

Encourage the Child’s Relationship with the Other Parent

Unless you have a good reason to feel otherwise, trust that the child’s relationship with the other parent is a positive one. Your attitude will be detected by the child and he or she will intuitively know that you are encouraging a relationship with his mother or father. In most cases, parents who encourage the relationship with the other parent are less likely to have disputes that must be litigated by a court.

Sometimes encouraging the relationship with the other parent means being flexible for the child to spend time with the other parent for holidays or special occasions when you would normally have parenting time. If you are flexible with the other parent, he or she is more likely to be flexible when you want to do something special with the children.

Try to put any differences aside, and attend the child’s school and extracurricular events together. In most cases, a child is incredibly proud to have both parents at his or her events.

Children really do best when they know they are encouraged to share love and affection with the other parent. When children feel that they are not supposed to have a good relationship with the other parent, they are internally conflicted since they depend on both parents for their survival. When children are conflicted like this, it often leads to the children talking bad about the other parent in an effort to get the approval from the parent. This often leads to litigation since the parents are hearing two different stories from the children.

Keep Detailed Financial Records

Whether you are supposed to receive child support or pay child support, keep a detailed record of all payments made or received. Include when the payment was made, how it was made, and save a copy of the document proving the payment was made, such as a copy of the check.

If you are the parent who is paying child support, if at all possible, do not pay in cash because there is no documentation of the payment. Use a payment method where there is a “paper trail,” such as writing a check. If you must pay in cash, send a confirmation text message or email to the receiving parent stating, “This is to confirm that I gave you $____.00 [insert dollar amount] for child support in cash on __________ [insert date]. Print out the confirmation text message or email to document the expense, and keep the documentation in a safe place. If you pay child support with a check, which is recommended, write “child support” in the memo line of the check.

Usually parents split things like uninsured medical, dental, orthodontia, and vision expenses based on their income proportion on the current child support worksheet. Most times, parents split agreed-upon extracurricular expenses 50/50 or based on their income proportion on the current child support worksheet.

If you are paying the other parent for multiple items, do not write one lump sum payment. For example, if you owe the other parent child support, maintenance/alimony, reimbursement for an extracurricular activity, and reimbursement for an uninsured medical expense, write the other parent four separate checks. Each check should indicate specifically what the payment is for. If the payment is for an extracurricular activity, write what the activity is in the memo line of the check with the child or children’s names.

While this level of tracking may seem tedious, it makes the payments very clear and there is a lessor chance that you both will litigate over the issue of whether the payments were made. Keeping payments separate and keeping detailed records decreases the chances that the parents will end up litigating because if there is a disagreement about one parent owing the other parent money, if there are detailed records, both parents can sit down together and review the records, or the parents’ lawyers or mediator can help the parties come to an agreement about any outstanding payments that may or may not be owed.

Further, if you do end up litigating, you and your lawyer will spend less time trying to sort through the records if you have them well organized and categorized properly. This will likely make your litigation fees less expensive. Moreover, when there is a maintenance/alimony check issued, and the payment is lumped into another payment, it could be problematic for claiming the alimony deduction on your tax returns.

In some situations, the other parent is not willing to be reasonable, and going to court is necessary. However, it is important that both parents put the children first, and at least try to minimize the litigation.

For additional information and if you have questions, please contact Gregg Greenstein.

Sarah Rizzolo is no longer with the law firm of Frascona, Joiner, Goodman and Greenstein, P.C.
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