Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If I Agree To Use A Parenting Time Mediator, Is It Mandatory That I Do So Before Going Back to Family Court?

Throughout my years as a New Jersey divorce lawyer, I have had handled many cases in which the parents cannot agree on even basic of decisions involving their children.  In recent years, when I am handling child custody and/or parenting time issue that poses this type of animosity between the parents, I advocate the parties engaging a parenting time mediator (or coordinator).  Simply put, a parenting time mediator is a licensed and professional child psychologist or a family law attorney who helps two parents, “get back on the same page,” so to speak.

In fact, I have drafted many Matrimonial Settlement Agreements that specifically state the parties must engage a parenting time mediator before the may file an application with the Family Part of the Superior Court of New Jersey.  An exception to this scenario would be if a child faces potential immediate and irreparable harm. 

This practice not only promotes peace between the parents but also promotes the best interests of the children.  Furthermore, it helps avoid unnecessary litigation, which often only adds “fuel to the fire,” between two parents who are already (and regretfully) co-parenting in a high-conflict manner.  However, it is important if they parties include this provision in their divorce agreement settlement agreement that they abide by these terms and meet with a parenting time mediator before running to court.  Otherwise, the parent (or both parents) may be found to have acted in bad faith by a judge of a New Jersey Family Court. The recent case of Richardson v. Richardson illustrates this perfectly.

In the case, the parties married in November 1986 and divorced in December 2005. Two daughters were born of the marriage. When the dual judgment of divorce was entered into, the parties executed a settlement agreement. Pursuant to the agreement, the parties were to share joint legal custody, with the mother being the primary residential parent. Additionally, the agreement postponed the negotiated of the father’s child support obligation until the marital home was sold. Furthermore, the settlement agreement provided that the parties would equally share all the expenses for their daughter’s activities, lessons, camps, sports, equipment, and after school care.

Moreover, the settlement agreement recognized that the parties would hire a nanny to watch the children when they were unable to. The nanny would be paid from any rental income the parties collected or rent proceeds. The parties also decided to alternate responsibility for childcare in the mornings and after school as a way of reducing their overall child care expenses. Lastly, the agreement provided that “in the event that the parties are unable in the future to reach an agreement regarding time-sharing arrangements or other issues regarding [the children], they agree to utilize the services of a mediator and participate in mediation and make a bona fide attempt to resolve the issues before litigating any issues. If the parties are unable to agree upon a mediator to reach an agreement, they each agree that the mediator shall be selected by the Essex County Probation Department.”

In 2010, the mother filed a motion with the family court seeking all different types of relief regarding custody and visitation regarding their children.  Ultimately, the trial court entered an order that required the father to have supervised visits and reimburse his ex-wife for delinquent child support payments. The court also ordered that the children undergo a risk assessment and that the parties equally share in the costs of childcare expenses. Over a year later in October 2011, the father sought to waive his right to see his daughters until they reached age eighteen. Yet, he also proposed that he be able to speak with them on the phone whenever possible. As a response, the mother sought sole legal and physical custody of the children, in addition to payment of support arrears and garnishment of her ex-husband’s wages to pay the arrears he owed her.

After learning that his ex wanted sole legal custody in addition to the physical custody she already had, the father requested to withdraw his motion to waive his visitation rights. Instead, he now sought reinstatement of unsupervised visitation with his children. Furthermore, the father asserted that his ex-wife had hired a nanny for the children without his consent, an expense that he did not want to contribute to without having consented to the decision. In addition, the father sought an order prohibiting his ex from questioning the parties’ daughters about what occurred during their visits and phone calls with him.         

The trial court ultimately sided with the father and denied the mother’s request for sole legal and physical custody. However, it did require the father to pay the child support arrears he owed to his ex-wife. The trial judge ordered that in addition to the arrears the father owed, he would have to pay an additional $100 per week in support to be garnished through probation. Yet, this did not seem to be enough for the wife so she moved for reconsideration. As a response, her ex-husband did the same.

In August 2012, the motion judge denied both the mother and father’s applications for reconsideration. The judge stated that the parties should have proceeded to mediation based upon the provision in their settlement agreement and that, at this point, they were not bringing motions in good faith. Both parties appealed. On appeal, the Appellate Division stated that the parties entered voluntarily into a comprehensive settlement agreement, which included a provision to use a mediator prior to litigation to address disagreements with respect to the children. 

Ultimately, the Appellate Division ordered the parties to comply with their settlement agreement, which required them to mediate in good faith as opposed to flooding the courts with unnecessary litigation. 

To learn more about how a parenting time mediator or coordinator may help you and your family, please do not hesitate to contact my office today.