Greatest Custody Clause

For anyone 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.  A high-conflict ex-spouse, particularly if they suffer from any of the “big 4” personality disorders, will spare no effort in exploiting loopholes and vague language within custody agreements.  With the following provision, any changes that need to be made to the custody agreement, whether short-term or long-term, will be completely unenforceable unless you insist that the following clause (exact or with similar language) be included in your custody order:

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.

Nearly everyone we’ve encountered who are involved in a high-conflict divorce and custody situation have struggled mightily with:

  • The ex-partner reneging on verbal agreements which were then revoked, oftentimes at the “11th-hour.
  • The ex-partner reneging on written agreements (usual email agreements).
  • Verbalizing agreements and then failing to put them in writing or draw them up as orders.  This is particularly painful if you’ve gone through the time and expense of having an attorney draw up modifications only to have the high-conflict ex refuse to sign them.

The following is a basic assessment of a high-conflict ex-partner’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 them 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. They do not negotiate. They pretend to negotiate.  Then, they will continue to “up the ante”, a disguised effort showing (falsely) they are amenable to a settlement or modification.  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.

I have this clause in my own custody order.  I suggested it to the judge who put into our order, verbatim, including the “all caps” portions.  It has been instrumental in heading off some court hearings.  Those that it didn’t, it was instrumental in either defending myself resulting in a finding of innocence or finding “Jane” 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.

If your current custody order/agreement doesn’t have this clause – get it in there the next time you have the opportunity to get it modified, even if the modification is for some other issue.   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 high-conflict 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 very moment you get a written agreement in reply – STOP!  No more discussion.  No mind-changing allowed.  It essentially becomes 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! And remember, you are just as bound by this clause as your ex is.  Never forget that.

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