The Greatest Custody Order/Agreement Clause
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Changes: All provisions of this agreement may be altered with prior WRITTEN agreement between both parties. If a deviation is agreed to by both parties, it may not be revoked or changed without subsequent written agreement by both parties. Written agreements may be accomplished via email, fax, or through other documented media.
If anyone is going through a divorce involving children, be it civil or uncivil, I have found this to be a most powerful ally in ensuring against alleged miscommunications and the likely occurrence of “he-said, she-said” situations.
I’ve struggled mightily for several years with PEW’s:
- Reneging on verbal agreements which were then revoked at the 11th-hour.
- Reneging on written agreements (usual email agreements).
- Verbalizing agreements and then failing to put them in writing or draw them up as orders (after getting burned with time and expenses of having an attorney draw them up only for her to refuse to sign them).
I’m on the record in various places around the internet with a simple assessment of a borderline’s negotiating and agreement philosophy:
#1 - There is no agreement that you can come up with that s/he will ever agree to. If you came up with it, there must be something wrong about it, underhanded about it, or you are trying to rip her off in some way.
#2 - If s/he verbalizes an agreement with you, s/he will never sign your documentation or see to it that it is documented and signed from his/her end.
#3 - There is no agreement that s/he’ll come up with that s/he’ll agree to if you agree to it. If you like it, there must be something wrong with it or she forgot something that will benefit you and rip her off.
#4 - BPD’s don’t negotiate. They pretend to negotiate, upping the ante in a disguised effort showing (falsely) they are amenable to a settlement. After you’ve gone way above and beyond what is fair or equitable in an effort to settle things, s/he will use that as the benchmark in asking the court for more when you go to the inevitable hearing.
Now I’m fairly certain that the clause opening this post is not uncommon and probably not original. However, I did come up with that all on my own. Tired of the run-around that was typically associated with “working with her” as she so often claims she does verbally but doesn’t actually do in reality - I had to come up with something that would reduce my frustration and lock her in. Vacation plans, extra custody time, exhange points, and other plans have been upset by her games. I’d swirl into a pit of begging and pleading for honoring what we had discussed, to no avail. So, that was the clause I came up with to change things. I wouldn’t beg. I wouldn’t plead. If I didn’t have it in writing, I had no agreement and I would plan accordingly. Unfortunately, it was usually without the children.
It has been instrumental in heading off some court hearings. Those it didn’t, it was instrumental in either defending myself resulting in a finding of innocence or finding her guilty of contempt. When she goes into court claiming she didn’t agree or there was some misunderstanding, I usually only have to hand the judge the email exchange showing agreement between us and the jig is up. It’s really been that simple.
I presented that clause to Judge Contempt. Not only did she like it, she put it into the order exactly as I wrote it, including the all-caps “WRITTEN.”
If your order/agreement doesn’t have this clause - get it in there the next time it is updated. If you’re in the middle of a custody case, make sure that a clause (or one with similar language) becomes a part of any final order.
It won’t guarantee that your psycho-ex will adhere to the order without violation. However, when s/he does, at least you will have protection and proof should you need to go to court. Remember, when emailing, always copy yourself on every single email. Keep your paperwork filed and organized in the event you ever need to use it in court.
If you feel compelled to request a deviation from your order, do it in writing. The MOMENT you get a written agreement in reply - STOP! No more discussion. No mind-changing allowed. It is essentially an extension of the court order without having to go through a hearing for a change. Accept no substitute. If you don’t agree in writing, you don’t have an agreement, period. Follow that order to the letter and avoid deviations unless you have them in writing - agreement from the both of you - IN WRITING!
March 28th, 2008 at 3:09 pm
That is a fantastic idea. We can never get his nutjob ex to sign anything. It’s exactly as you said. She promises things and then it’s “I never said that” I will hold onto this and when she finally takes us back to court(we’ve not gone yet…..been threatened Xs infinity) we’ll have this added. Her favorite saying is “my lawyer said” followed by “you’ll hear from my lawyer!” Always in front of the kids.
March 28th, 2008 at 3:39 pm
Just keep in mind, it doesn’t mean that your ex will agree to things more. It just means that you have provided yourself a certain level of comfort in knowing that you no longer have deal with the uncertainty of mind-changing absent consequences.
Even in my own case, PEW made some things total hell even with a written agreement between us. However, that written agreement gave me the power to hold my ground and not live in fear that a court’s interpretation of what should have happened didn’t.
Yes, I still live with disappointments like S1 not attending his Swim Team Championships because she didn’t want to agree. However, without having it in writing, it was easier for me to plan on his not being with me for what was otherwise an incredibly successful season.
Yes, I still live with the disappointment that my children didn’t join me, DW (and her children) for a great trip to New York City because she wouldn’t agree to it in writing. However, at least we could still plan the trip without wondering. My boys missed a really wonderful opportunity and experience because PEW, and I quote, “…can’t understand what benefit a trip to NYC has for the kids.” Nevermind the ferry ride to see the Statue of Liberty, FAO Schwartz, a play… etc. etc. I didn’t have to explain it and we just planned the trip without them, unfortunately, with substantially less anxiety.
It serves as guidance and protection and, even if the situation is disappointing, the anxiety level is way down because “if it isn’t in writing, you don’t have an agreement.”
March 28th, 2008 at 3:52 pm
Thanks for sharing this. I’m always struck by how pathetic it is to have to continually cover one’s ass, or how one parent renders it necessary and can live with being a psycho jackass.
March 28th, 2008 at 3:58 pm
How perfectly, beautifully simple. I love it. I think I will have My Hubby ask or Arb-Man to add it to the court order. It would make life so much easier, especially with regard to continuing to arbitrate things.
March 28th, 2008 at 4:06 pm
Those of you considering using this might want to try to write some sanctions into a willful violation of the provision. Attorney’s fees, expenses, lost time off from work… etc. Perhaps even a court fine on top of all of that.
Of course, for me it was just important enough not to muddy it up with complications. I just needed some protection and that clause works.
Should she persist, then we can look at upping the ante.
March 29th, 2008 at 5:54 am
Yup…you really nailed it there! I do have a similar clause in my order of custody and visitation and you are absolutely right; it is imperative to have especially when dealing with a BP. Fortunately, I am the custodial parent with final decision making power, however, unfortunately that doesn’t stop Cruella’s favorite way of making my life as miserable as she can….filing false allegations of abuse with CPS without a care as to how that affects the children.
December 2nd, 2008 at 4:56 pm
[...] If you’ve read any of the previous settlement offer stories, you would know that this one wouldn’t work out in the long run, either. I was confirming our discussion as I was preparing to send our agreement to my lawyer to draw up for us to both sign. She loved to renege on agreements: [...]
January 20th, 2009 at 9:51 am
I have it written in our court agreemnet. my problem is it takes 10 emails to make her answer one because she is afraid to put it in writting so it works to hold them responsible BUT it won’t change her bad attitude
April 1st, 2009 at 11:56 am
[...] Last week, we had a short discussion about Easter, which this year is ours. As we have plans in home-state for dinner with family and friends, I suggested that I would like to return them on Monday, keeping them an extra day. She agreed, verbally. Where I made a mistake was not following-up with a confirmation email to obtain her written agreement - which is why I had put into the order the “Greatest Custody Order/Agreement Clause.” [...]
June 14th, 2009 at 9:25 am
[...] agreements. After looking at the two options she proposed, I picked one. I only half-joked in this post about PEWs/BPDs reneging on agreements that even they floated. Well, read [...]