Tuesday, February 18, 2014

Enforcing Parenting Agreements – What happens when the Plan Fails?

"I think a plan is just a list of things that don’t happen.”– Parker in The Way of the Gun
Often when negotiating a parenting plan with clients, I point out that the actual written plan doesn’t dictate what happens.  It’s just a piece of paper.  Even when the court enforces the agreement that process takes time, effort, evidence, follow-up, and more time.  When both parents agree to guidelines for co-parenting that make sense to both of them, then they are more likely to end up with an actual plan that everyone buys into.   When parents can’t agree the result is typically a Judgment or Divorce Agreement that results in more litigation in the form of Modification actions, Contempt actions and Appeals.

One such case was recently remanded to the trial court by the Massachusetts Appeals Court on a 1:28 decision.  The case involved a Complaint for Modification, Cross-Complaints for Contempt and Cross-Appeals.   While the issues being appealed are numerous, one issue in particular highlights the problems with enforcing a parenting plan when it doesn't work.

The Process for Enforcing a Parenting Plan:

M.G.L. c. 208 Section 31 defines legal and physical custody and requires that the court make a determination of both if the parties are unable to agree.  If the parties agree then they must submit a written agreement to the court.  In addition to defining custody, divorce agreements (sometimes called separation agreements) will typically include a parenting schedule and provisions relating to communication and notification.

For example, in this recently appealed matter, the separation agreement included provisions relating to communication between the parents during illnesses of the children, major decisions concerning the children’s upbringing and their general well-being.  These types of provisions are typical and, when followed by parents, they create a co-parenting relationship that encourages both parents to remain involved in the day-to-day life of their children.  But what happens when these provisions are not followed?

What is the remedy for a damaged relationship with your child? How can the court go back and fix that?  

When a contract provision requires that one party pay the other party $1,000 and that provisions is violated, the solution is obvious.  If you spend any time in a district court, you will see that the majority of cases in small claims court are exactly these types of cases: credit card companies suing over non-payment of debts.  The resulting agreement or judgment involves simply a plan for making the payment or executing against some asset of the debtor.

The remedy for non-payment is obviously payment.  But what is the remedy for missed parenting time? What is the remedy for a damaged relationship with your child? How can the court go back and fix that?

The Failures in the Process:

In this Appeals case, the father alleged violations of the communication provisions (among others) that stretched over six years, and is criticized in the mother’s brief for waiting to bring these allegations.  This is a catch 22 for the father.  If he brings a Complaint for Contempt every time the mother fails to communicate with him, they would always be in court (probably with Complaints from both sides).  On the other hand, if he waits until it becomes a pattern, he is criticized for waiting too long.

According to the father’s brief, despite the father demonstrating numerous violations, the trial judge indicated that he found “no basis upon which to find any contempt” by the mother.  The trial judge also expressed frustration at the lack of remedies the court might have to resolve the conflicts in communication presented by the father:
“… I can go up on the roof of the courthouse now and say on the… matter, the parties shall cooperate with one another, right?  But I recognize that I’m a judge.  I’m not the king, OK?  I am simply a Judge.  I can’t make things happen.”
This is a sentiment that is often discussed in the family court, because regardless of what the judge orders, parenting plans are difficult to enforce.  The violations are extremely fact specific, often relying on he-said/she-said testimony, and there remains the issue of when and how often should these issues be raised to the court.  But does that mean that there is no remedy available?

As the father argues in his brief, if the court approves the Agreement and finds it to be fair and reasonable, thereafter incorporating the agreement into a Judgment, it should be enforceable.  There has to be some remedy available to a party if he can prove that there has been a violation.

The father argues that the need for a remedy is not just about justice and fairness, but required by Article 10 and 11 of the Massachusetts Constitution’s Declaration of Rights.

Article 10 reads in part:
"Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws."
and Article 11 reads:
"Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely...; completely, and without any denial; promptly, and without delay; conformably to the laws."
If the trial judge abused his discretion on the facts by not finding any violations by the mother, then the father is right that there has to be a remedy.  The law requires it.   For now, the Appeals court avoided this issue by remanding the case back to the trial judge requiring that the judge provide findings of fact on both the father and the mother’s Complaints for Contempt.  While this is not a loss at the Appeals level it represents another significant delay for both sides in seeing any remedy out of the court.

Finding a Remedy:

When teaching an associate how to prepare for a trial or motion hearing, I always advise them to first write their proposed judgment or order.  Once you know what you’re looking for, then you can figure out the rationale for why you should receive that result.  Then you can figure out what facts you have to prove to support that rationale.

The father in this appeal indicated in his brief that he asked the judge, among other things, to hold the mother in contempt and to order the mother to attend parenting counseling.  If the judge holds the mother in contempt on remand that might have felt like a moral victory to the father, but in practicality that holding alone would not be a remedy for any communication issues.  In many cases parties seek attorney’s fees or monetary sanctions for violations of non-monetary provisions to at least show the violating party that there are consequences.  However, monetary punishment won’t undo damage to a parenting relationship either.

The suggestion by the father that mother attend parenting counseling would at least have the potential to improve communication for the future.  However, it still won’t fix the problems created by the past failures to communicate.  In fact, there is no one hundred percent satisfactory remedy to undo damage to a parental relationship.

Regardless of the result of this matter, their children continue to grow older and time marches on.  Hopefully, the trial court on remand can fashion a remedy that is better than none, but regardless of the result the real lesson is one for other parents; these types of cases are cautionary tales of how the system is broken and may always be broken, at least when it comes to enforcing parenting plans.

Finding a Better Remedy:
“I love it when a plan comes together”
– Colonel Smith The A Team
In many cases the parents are only working to resolve the conflict right in front of them and the litigation process encourages this short-sighted resolution by only addressing specific and immediate conflicts.  The litigation process is designed for parties with a singular conflict that they were unable to resolve themselves, but parenting is not a one-time relationship.

It is possible, however, for parents to avoid the problem with unenforceable agreements and come to a plan they can both buy into.  To reach that consensus takes more than lip service during negotiation.  It requires that the parents be willing to have difficult conversations before the problems arise.
Parents don’t always have to agree what is best for their children to still agree that they both want the best for their children.
Parents can find ways to resolve parenting conflicts more effectively in the future by making use of professional’s experience about the types of problems that arise coupled with honest evaluations of the communication problems that are likely to occur between the parents.  This is not easy work, but parenting is not supposed to be easy.

One of the reasons I practice both Mediation and Collaborative Divorce is because litigation leaves little room for an honest parent-to-parent conversation about working together towards common goals.  When parents can’t have that conversation, a parenting plan is just a list of things that won’t happen.

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