Common Grounds for Voiding Custody Agreements
Child custody arrangements are finalized under the idea that the courts have decided and parents have agreed upon where children will reside when families separate. However, these agreements are not necessarily set in stone; if either party to the custody agreement fails to uphold their end of the deal, the agreement can be voided. Even the courts might decide that it’s time for a change of address.
There are three primary reasons why the courts might decide to void a custody agreement, or a judge might remove a child or children from a parent’s care. The first is the most common: there has been a major change in circumstances that would benefit the child by changing custody. The second reason is just as straightforward , only the violation of the terms of agreement, which leads to devastating consequences to either children or parents who are in violation. Lastly, if there was a legal or procedural error at the original proceeding, it might lead to a voiding of the entire agreement.
It’s important to remember that your options for legal action do not run out after the initial proceedings. If one party to a custody agreement is not keeping up their terms, it’s possible to challenge the validity of the agreement. These measures can be taken in lieu of initiate a new custody proceeding.
Substantial Changes in Circumstances
The custodial agreement you have with your ex is designed to give you both time with the child, but it could be torn apart in the event of significant life changes. If either parent is moving far away, remarrying or getting a new job, the way the child is cared for could change significantly.
When a parent moves far away from the child, whether to start a new job, marry someone new or any other reason, he or she may seek to have the custody agreement adjusted. This mostly resembles a modification for visitation, where a parent seeks to regain symbolic time with the child each week, though it could also involve a move-away. This is especially true if the child is currently residing with one parent.
In many cases, remarriage will not have as much of an impact as a serious, long-distance move. However, if the new spouse lives far away or extensively travels, the holiday schedules that were established may no longer work.
If you or your ex spent more time with a child than the other due to sickness or other issue, the modifying party in a custody case could point to difficulties the sick or busy parent had to face and argue that a schedule closer to the other parent’s would be better for the child.
This is especially common in cases where one parent is ill enough that he or she cannot care for a child while the other is at work and the school schedule exists. The first parent may ask to change the agreement so that the child primarily resides with the healthier or busier parent in order to remain in school without frequent interruptions.
Errors and Omission in Law
In fact, it’s the very mistakes made by an attorney during a settlement agreement which can render the contract void. A court can hold a custody agreement to be void under the ripe doctrine of mistake if the incorrect legal advice of an attorney is relied upon by the litigant and the litigant would not have us the contract but for the legal error. In the recent case of Yemini v. Yemini 66 AD3d 448 (2d Dep’t 2009), which was referred to by the Appellate Court in Barton v. Shulkin, 69 AD3d 873 , 874 (2d Dep’t 2010), the father’s custodial rights were terminated when incorrect legal advice, that joint custody was not a possibility, was given to him in the context of child support and visitation. The wife sued the attorney who drafted the agreement claiming that she was damaged because she had signed a custody agreement which he advised her was unenforceable. The Appellate Division reversed the granting of a motion to dismiss made by the attorney in the case, finding there was a question of fact as to whether the plaintiff could show throughout the course of the settlement agreement, the defendant acted negligently rendering the agreement invalid.
Violation of Agreement Provisions
Failure to comply with the provisions of a Custody Agreement can lead to a custody agreement being voided. For example, say a Court Order states that the natural parents of a child will have the child from Thursday at 5:00 PM to Sunday at 5:00 PM. If one of the parents does not pick up the child from school, or even if that parent attempts to pick the child up and the school calls the parent saying that the child cannot be released to them, this can lead to a custody agreement being voided and the Court being asked to review what the parties should do going forward.
If a parent misses their visitation and is over hours late picking the child up from the parent’s school and there is no good reason for it , this can also lead to the Court reviewing what should happen going forward.
Failure to advise the Court if a parent changes residence can also lead to a custody agreement being voided. In essence, if a parent moves a shorter distance away, the agreement will likely not be impacted. If a parent moves out of a county, or out of the state, and does not advise the Court voluntarily, then they have created a conflict between the terms of the Custody Agreement and the Police Power of the state as explained under the heading "Jurisdiction in Custody Cases." The Court will likely void the Custody Agreement and replace it with a new one consistent with the terms of the old Agreement but with tremendous weight given to the parent who did the moving and willingness to ensure that the other parent’s time with the children is protected, albeit with some restrictions for the parent doing the moving.
Concern for the Child’s Safety and Welfare
In some cases, the welfare and safety of a child are at stake. For instance, if domestic violence is an issue, a court may be concerned that one parent poses a danger to the child and could void the entire custody agreement. While some degree of danger may be acceptable given the circumstances, some dangers are too great to accept. A good attorney will help show the court that certain language should be in the custody agreement because the child and/or the other parent faces an unreasonable risk.
Serious cases of child abuse or neglect may require the removal of the child from the home and the voiding of a previously signed custody agreement. Even with the best parenting, the safety of the child may be at risk. This is especially so if one parent has a history of abuse or drug use. Many times, abuse does not rear its ugly head until a few weeks or months after the custody agreement is signed. The family court will often get involved because it is within its purview to protect the welfare of the child. When the safety of the child is threatened, the family court will act accordingly to void the currently signed custody agreement and appoint a guardian to the child or reassign custody as necessary.
It is important to have solid representation in front of the court. A good family law attorney will make sure that nothing impedes the signing of a generally fair custody agreement. It is also invaluable to have good representation if these types of issues should later arise.
Process to Nullify and Adjust Agreements
Voiding or modifying an existing custody agreement is a process that occurs through the legal system. The first step for either a modification or a move to void the agreement altogether is a motion filed in family court. This informs the court of a desire to alter the original terms of the agreement and is often combined with a proposed resolution.
These can be from all parties in the matter of interest, but generally, the family court will appoint a mediator to recommend a solution to the problem both parents face. In some cases, if mediation is not successful, there may be a request for a full trial of issues. Depending on the situation, the family court may rule based on the parties involved, or they may determine the outcome in the child’s best interest.
In order to avoid significant delays, any petition to modify a custody agreement must be heard within 30 days. This varies based on the custody agreement in place, however, if there are safety issues present, the court may limit the amount of time the other party has for a response. The ruling may take place without the non-respondent’s knowledge if they cannot be reached.
In many situations, the opinion of experts such as psychologists and maladaptive behavior specialists is taken into account. These experts are called in to provide their feedback on the family situation, and then a recommendation may be made to the court. Further, family courts generally make their ruling based on what interests the child’s needs over that of his or her parents . In these cases, the family court may set up a schedule that offers alternative arrangements. These schedules are developed around not only the child’s needs but also the family dynamic that exists.
In most cases, the family court requires the presence of both parties to agree to changes. However, if this is not possible, the family court can take all factors into consideration and override the basic agreement. This is particularly true if there are issues of victimization, abuse, or neglect.
The recommendation and ruling of a custody case always comes from the family court, but the outcome itself is derived from the actions of the two parties involved who are directly impacted by the outcome. In many cases, there are agreements made in mediation between parties that exist outside of what the court will rule after a trial. In these cases, if the modification can be agreed upon in a written and signed document, this is what the court will then enforce.
If there is a ruling that cannot be agreed upon outside of the presence of the court, the ruling of any child custody matter is binding, and the only option for address is an appeal and possible return to family court. Disputes arising from divorce actions or other legal matters in family court require a legal stance. After a ruling, the court makes an order that both parties are required to uphold for the duration of the terms. If one party does not uphold his or her end of the agreement, this is known as contempt of court and involves being summoned back to court for review and decision.