How to Settle a Custody Case at the Outset

Posted: August 14th, 2015 by

Lisa Shapson, The Legal Intelligencer (online)

A close colleague once told me that he always attends the initial divorce conference or hearing with a completed property settlement agreement in the hope that the parties can settle and sign that day. This process in Pennsylvania is the called the equitable distribution master’s hearing and in New Jersey, the early settlement panel or ESP. In some cases, total settlement at the initial conference may seem a bit aggressive, but for divorce litigants, being able to resolve everything in writing in one day can be a huge relief. Having a proposal in hand can help people to negotiate and settle that day just to get the matter over and done.

Another family law practice area where a prewritten agreement is most helpful is at the first custody listing. Prior to the initial conference (Philadelphia metro area) or mediation (NJ), it is good practice to draft a stipulation that not only sets forth a regular custody schedule, but also sets forth, with specificity, transportation, telephone contact, vacation and holiday schedules, which are issues in every case. Since initial hearing officers may not have the time to address each item at the first listing, a draft agreement can focus on items that are time-sensitive.

Dividing holidays equitably is not as difficult as it may sound. The holiday portion of a stipulation should include a table that sets forth all holidays in the first column, who gets the holiday in the second column and the times for the holiday in the third column. Prepare an introductory paragraph at the onset of the holiday provision to indicate that the holiday schedule in the table is for one party in even years and that the schedule will reverse in odd years. For heterosexual parents, the mother should always have Mother’s Day and the father should always have Father’s Day. Of equal importance is each child’s birthday–don’t forget those.

When creating the holiday schedule, be sure to look at the academic calendar for the children involved as there may be some school holidays the client may not think to include. By way of example, President’s Day is a national holiday that translates into a day off from school. If neither party has that day off from work, the parent with the holiday would have to either take President’s Day off or find suitable child care arrangements. If the children in the case attend a religious school, the holiday schedule may be trickier to create because a complete list of those holidays may not be something the parents will be able to remember off the top of their head at a custody conference. This is why it is important to confer with your client ahead of time about what holidays need to be included in their proposed agreement.

For those of us who practice in New Jersey, the court’s Holidays and Special Days Parenting Time Schedule is quite thorough and helpful in most cases where the parties have not thought of a holiday schedule or cannot agree to one. But, in cases where people are truly wonderful at co-parenting and know that their children have days off from school that encompass more than just the common ones, the court schedule is limiting in that it does not include all minor holidays.

Regardless of where you practice, arriving at a first custody listing with a stipulation that includes a proposed schedule of what holidays pertain to your client’s family is particularly helpful, even in those cases where there is nominal conflict about the actual schedule. To maximize three-day weekends, draft the holiday schedule so that the parent with the preceding weekend gets that holiday. If that is not possible, suggest a provision for the parent with that holiday to begin custody over the previous weekend. This may seem unequal at first, but eventually evens out over time.

Another benefit to bringing a draft agreement with you is that it is a secure way of ensuring that all of the requisite “behave like a grown-up” language is included. Many court recommendations do not incorporate language requiring the parties to refrain from discussing the litigation in front of the children and not disparaging the other party in front of the children, etc., unless the facts of a particular case warrant that type of behavioral language. If these provisions are necessary, court officers are generally pretty appreciative of organized litigators who show up with draft language.

The most telling reason for bringing a proposed stipulation is to stop the bleeding. Parents battling over custody issues is never in the best interests of their children. Even if the regular custody schedule has to be negotiated, having a fully written stipulation that just needs to be marked up, signed and submitted can make the process that much easier and cost-effective. It can also make the conference or mediation a lot shorter and clarify issues needing the court’s assistance. Sometimes, when walking into these conferences, everything seems like an issue. Approaching the other side with a written proposal for resolving them facilitates negotiating the language instead of getting bogged down in an argument of why the provision needs to be written in the first place.

Fitting in this level of preparation ahead of time is not always easy for some family law practitioners, but is well worth the effort. Paralegals can be a great resource for drafting the holiday schedule. Being prepared will help to conserve your client’s fees at the actual hearing; or, better yet, if you can send the stipulation to the other side ahead of time, you may be able to settle the custody matter without having to enter the courthouse door.

Reprinted with permission from the AUGUST 14, 2015 issue of THE LEGAL INTELLIGENCER (online). © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All Rights Reserved.

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