From Cradle to College – Mediated Agreements that Last Over Time

By Laura Melton Tucker, May 14th, 2014

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Today’s blog entry focuses on a question that often comes up during mediation:  “What happens when our circumstances change and our parenting plan no longer fits our situation?  Do we have to go back to court?”   This excellent question speaks to the complicated and changing nature of families.  As children age, parents re-marry and jobs change, how can one agreement cover the inevitable shifts that occur in families?  How can a single Memorandum of Understanding address the changing needs of children and parents, and maintain relevancy over the duration of the children’s years at home? The answer is that the agreement can be written to anticipate changes. A good mediated agreement includes contingency clauses; sentences that lay down a road map for how to deal with changes as they come up. Here’s what contingency clauses look like, and how they accommodate growing families:

When Rod and Geralyn* came to me a few years back, their two daughters were not yet in school, and more significantly, Geralyn was preparing to enter a program to earn her teaching credential.  For the next few years, Rod wanted to provide financial support to Geralyn while she focused on her academic work.  He explained that providing financial support to improve Geralyn’s earning potential made economic sense for the whole family.  The contingency clause Rod and Geralyn asked for stated that they would review Rod’s spousal support once Geralyn finished school and became employed as a teacher.  Another clause in their mediated agreement said that if they couldn’t agree on future financial or parenting decisions, they would seek mediation first as a way to resolve issues.  Returning to court for a modification was something they wanted to avoid.

Similarly, when Jim and Julie* met to discuss how to share care of their infant son, they were skeptical that a parenting plan for their baby could translate into a durable agreement that would last until their son entered college.  During their discussion about parenting they settled on several big picture concepts to guide them in the years going forward.  They drafted a list of understandings about how to share decision making related to schooling, living in proximity to one another, sharing expenses for extracurricular activities, and guiding grandparents and extended family interactions around their son.  Theirs was a plan that took into account what they knew about themselves, their priorities for their son and the role they wanted their extended family to play in their son’s life.  They also asked me to write a clause saying that every year the parents would meet to review how their shared care plan was working.  And when it came to discussing how to share holidays and vacations, they asked for a clause stating that parents would be flexible and accommodating when considering their son’s schedule and needs.  These co-parents entered into their agreement choosing flexibility, civility and cooperation.

Drafting an agreement that works well in the moment as well as over a long period of time can be challenging.  An agreement must multi-task.  It will address fine points in schedules while also clarifying intentions and understandings.  It will be specific for the current situation, but also include language that anticipates change. Contingency clauses provide fluidity as economic needs change, as children’s school and social demands shift, and as parents re-marry.  By openly stating that understandings will be revisited as needed, co-parents agree to regularly address changes as they occur.  Often, co-parents write clauses stipulating regular mediation to resolve differences as they come up, proactively anticipating a need to sit down and talk in order to place the children first.  The takeaway is that life is complicated and difficult for everyone. Mediated agreements with thoughtful contingency clauses anticipate change and help families plan for a peaceful path forward.

*Names and details have been changed to protect privacy.

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