My soon-to-be ex and I have gone through mediation and are close to finalizing our divorce settlement agreement, but I have a question concerning legal strategies I might pursue.
My ex is mentally and emotionally unstable, and sometimes I fear for our son when in her care because she does not make rational decisions when she is angry.
Should I try to get her to sign the agreement we already discussed with the mediator and then try to add the amendment after the fact or should I fight for this amendment to be added now but risk her not agreeing and changing the whole settlement agreement?
If you try to change the terms of the agreement the two of you reached in mediation, you’re likely to run into some friction with your wife. You also potentially open the door for her to start amending things as well, which could be a significant problem if the deal ultimately favors you. You should weigh the pros and cons of starting the amendment process as it could be a slippery slope.
With that said, you may have difficulty modifying clauses later on down the line if your concerns are rooted in conditions that are known to you at the time your reached the agreement.
Where I practice, the rule for changing terms of child custody or visitation is a “substantial and permanent change in circumstances that affects the minor child.” If your state’s child custody laws are similar – and it likely is – your wife may be able to effectively argue that you (1) knew about all of her emotional and psychological issues at the time you signed the agreement; and (2) because you knew about it then, you can’t claim that things have changed sufficiently now to justify modifying the terms of your divorce settlement agreement.
Another factor to consider is the fact that your child’s safety is at stake while in her care. Regardless of what you do with the mediation agreement, you may consider filing for emergency custody of your child if/when she does something that causes you concern for your child’s well-being.
Every state has a process for addressing these sorts of issues, and in a strategic sense, seeking emergency custody can sway things in your favor as most jurisdictions have presumptions that accompany such circumstances.
For instance, where I practice, if the emergency custody is granted based on a charge of domestic abuse, stalking, or harassment there is a rebuttable presumption that it is not in the best interest of the child to have custody or unsupervised visitation with the parent who is charged.
I strongly recommend you seek the advice of a skilled family law attorney as you weigh your options with regard to your mediation agreement and as you consider any movement toward seeking emergency child custody.