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Reality Testing Your Agreement

February 11, 2014  | 

One of the things that I emphasize with clients is that an important part of the mediation process is to make sure that the agreement is durable, meaning that the agreement will work as well for you in practice as it sounds in theory. Of course, you cannot anticipate each and every possible circumstance that might happen in the future, but we do try to address as many contingencies as possible.

I will be addressing future modifications to support payments in another post, and here I am concentrating more on circumstances that could make your parenting plan, which seemed quite workable and reasonable when you signed your agreement, into something that needs a major overhaul or at least a minor tweaking.

Typically, couples discuss and agree upon an outline for a parenting plan before they begin mediation. It’s the job of the mediator to then talk to them about the practical effects of such a plan. For instance, you may both believe that overnights during the week for the non-custodial parent would be good for the children, but have you considered how the children will get to school; the traffic flow in the mornings; or if the children will have all things needed for that school day like an assignment that was started at the other parent’s home or gym clothes? These are not meant to be prohibitions against weeknight sleepovers. Rather, they are simply things that you want to consider and know before you embark on a plan, and talking about them can help to resolve them in advance of a problem derailing your parenting plan.

It’s also natural for parents to say that they want to share all holidays and birthdays. Not only does it seem like that would be good for the children, but when you are mediating your agreement, everything you are discussing in mediation is new and probably unimaginable to you, especially if you are still living together. However, since I know from experience that things can change a lot more quickly than the parents think their situation will change, I will ask that they imagine how it would work when one starts dating. Again, it doesn’t mean that the couple can’t do what they intended, but they could also agree to build into the agreement an alternate plan if one is dating or if it just is just too painful for one to continue the practice.

Even something as simple as the concept of one parent having parenting time with the children on every Saturday and the other having parenting time with the children every Sunday will lead to questions from me such as, if the children are with dad every Saturday, what about special events that mom would want to spend with the children, or what if the children tend to have sports or other lessons every Saturday and dad doesn’t get that much time with them, or do you think that the children might want to have more extended time with both of you on a weekend rather than just one day?

And sometimes, parents just may suggest a plan that simply is too convoluted and confusing not only for them but especially for the children. This is the hardest point of reality testing because the parents have devised this schedule and believe it will work. It might, but I make sure that they know each and every pitfall that might occur by having a schedule so confusing that you need a computer to figure it out, and typically they will either change it or agree to include amendments in the future if it turns out that the schedule is not working for them or the children.

I will also always question my clients about relocation by one or both of them in the future. For the most part, neither of them will voice any plans or even a desire to relocate, but I let them know that circumstances can change with a job or a new spouse. If it appears that there is strong likelihood for a relocation, then we would address it head-on, and the agreement would provide what would happen. If a relocation is not imminent or likely, it does not make sense to spend so much time on detailed relocation provisions which hopefully will never come into play. In that case, though, we still will engage in a discussion, and the couple will need to decide what, if any, terms they want to include in the agreement regarding a radius clause, as well as the ramifications of having any language in the agreement indicating a radius should a parent wish to move with the children beyond the radius in the future.

Often during a mediation when we are engaging in reality testing, I tell clients that I like working with them and that it’s nothing personal, but that I never want to see them again. As difficult and painful it is to do all of this now, the last thing that they would ever want to do is need to revisit the agreement in the future because something they thought would work out did not. So, they understand that I’m not trying to destroy what the believed was the perfect plan but am just trying to make sure that the agreement will stand the test of time. While I cannot imagine each and every possibility that can work to make their agreement unmanageable, I can try to reality test as much as possible so they don’t need to ever come back to me or another mediator in the future.

 

 

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

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