Question: I want to give an example of an agreement we had during mediation and how valid these agreements are. We have an agreement through mediation that states I have the children every weekend, and also that I was allowed to have them Christmas Eve, which was a weekday.
She calls and says she wanted them the weekend after Christmas and if I don’t agree, she wouldn’t let the kids come over for Christmas Eve because it was on a weekday. I mentioned our mediation agreement and was told it means nothing until it is finalized by the court.
What is the validity of this agreement, which was signed by both parents and the mediator?
Even though you and your soon-to-be-ex-wife agreed to a custody and parenting time schedule and that this arrangement is in your children’s best interests, it is very, very important to have the agreement reduced to a written order.
This is because custody agreements between parents are just that – common, but informal. Courts rarely, if ever, enforce them or modify their own orders to reflect them because they have an independent duty to ensure that the order is in the child’s best interests. Depending on the procedures in your local courts and the temperament of your particular judge, this could range from merely placing a judicial stamp of approval on a written agreement between parents to an evidentiary hearing during which one or both of the parents give testimony to explain why the agreement is in the child’s best interests. Nevertheless, that your ex signed a mediation agreement is persuasive evidence, and an admission against her, that she agrees to the arrangement. Courts tend to defer to parents’ agreements, even if they have an independent duty to ensure the final order is in the children’s best interests.
Until you have an order, you have no “teeth” to the agreement, meaning no way to enforce it with, e.g., a contempt motion or a parenting time violation complaint in court. You should document your wife’s behavior for future reference in a motion or complaint to argue she is unreasonable or withholding your children, however.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Pennsylvania. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area for additional information or representation. Cordell & Cordell has attorneys located in Pennsylvania.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.