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American Bar Association - Defending Liberty, Pursuing Justice

Winter 2009

Vol. 5, No. 2

Family Law

 

Mediate the Move: Quelling Clients' Fears and Clarifying Options

When George and Ann decided to file for divorce, they were able to sit down at the dining room table and decide how their separation would take place. Division of property and debt was a relatively easy matter. Spousal support was not an issue. Both held responsible, well-paying positions. Their daughter, Lynn, was their most important focus. She was in middle school, doing better than average work, and had many friends in the community. George and Ann agreed that Lynn would live primarily with Ann and that George’s contact would be frequent. George was in retail sales, but didn’t want to be a weekend warrior. They agreed to every other weekend plus whatever additional time George requested, including every Wednesday evening, one half of the usual holidays, and one half of the summer.

Life went on. For two years the parties worked everything out. George saw Lynn frequently, several evenings a week, but weekends and holidays were rough sometimes because of the retail business. Then Ann received word that her company was closing its business in the state. Ann was offered a transfer to the head office, 1,500 miles away, with a small raise, moving expenses, and a continuation of benefits, including her pension and family health plan. She had one month to advise her company and three months before her plant would close its doors. Lynn would be starting high school in the fall, and Ann approached George with a proposal that Lynn start high school in her new city.

Upon hearing the news, George went ballistic. Ann’s move with Lynn would keep him from regular weekly contact with his daughter. He adamantly refused to even discuss Ann and Lynn’s relocation. Ann told her boss she would be making the move. She wrote an email to George explaining her decision. Ann told Lynn she would be starting high school in a new community. Lynn was excited at the prospect of a new school and a new house, but was sad and confused about leaving her friends and not seeing her father. George and Ann each hired lawyers. Let the games begin.

This scenario represents a fairly typical relocation case. And most all involved would agree that litigation nearly always is gut wrenching, time consuming, expensive, and damaging to the psyche of the children who are the reason for seeking the best possible resolution in the first place. Early mediation of a relocation case serves many interests of both the litigants and trial lawyers.

Time Matters

Most relocation cases are time sensitive. That is, usually deadlines must be met that transcend the arbitrary date set by a judge’s trial calendar. An employment decision must be made, the new job must commence, children must be registered or reregistered in school, wedding plans must go forward, and homes must be purchased or leases signed. Although some zealous trial lawyers may use delay tactics as pressure in negotiation, this strategy often backfires, causing the parties to litigate rather than make ill-considered decisions under pressure.

On the other hand, often a family lawyer is retained at the eleventh hour. The client calls days before a move is to occur or sometimes even after the relocation has happened. In these instances, scheduling a short-notice mediation is the best way to resolve the matter or clarify the issues that need to be taken to court. In most jurisdictions, it is far easier to obtain a short-notice, half-day hearing on stipulated issues than to schedule a five-day trial requiring many witnesses.

The Lawyer’s Role

Knowing the burden, the statutes, and the case law pertinent to relocation in your state is important in preparing for mediation. Anticipating what potential witnesses will say and what evidence may be available to support your position also is key. But far more vital to a successful mediation is the family lawyer’s help in clarifying the client’s underlying position and devising an alternate plan.

An alternate plan presumes that one party’s needs or rights can be substantially satisfied without endangering the other party’s needs or rights. An alternate plan preserves and protects the interests of the parties’ children for frequent, quality, age-appropriate contact with both parents. Most important, devising an alternate plan assists both parents in recognizing that there is more than one solution to the relocation problem.

Depending on the current state of the law in a particular jurisdiction and the specific facts of the case, a parent desiring relocation with children may be faced with a choice of either staying put or converting residential-parent status to joint custodian or even nonresidential parent.

Resolution for the parent left behind is equally problematic. Family lawyers always speak of contact and access in terms of “quality, not quantity,” but left-behind parents often say that the quality is never the same without the quantity, especially as their children get older and have added priorities of friends, school, and activities. A nonresidential parent whose goal was to keep the children from moving away suddenly may be thrust into the unanticipated position of becoming the primary custodian for the children.

We all know that family cases rarely settle in mediation based on one’s best day in court. A client who clings to the expectation that mediation will persuade the other side of the righteousness of his or her position is misguided, especially when it comes to relocation. The black or white, “yes or no” aspect of relocation is one reserved for the court.

Mediation is well-suited to tailoring a resolution that fits the special circumstances, needs, wants, and economics of the parties and their children. It is possible for a skilled interest-based or evaluative mediator to transform a “yes or no” relocation case into a negotiation that substantially satisfies the special circumstances, needs, and wants of the parties. There may even be instances where the need(s) that predicated the desire for relocation can be satisfied by the other parent, thereby eliminating the necessity of relocation.

The assistance of prepared lawyers and parties who possess the answers to essential questions about the proposed move is important in fashioning an alternate plan acceptable to all parties. The lists of questions below seek to engage both parents in personally seeking answers to questions such as the cost of travel, the cost of day care, and to think about their true availability during holidays and vacations. The answers to these questions may provoke thought and a reevaluation of a previous position.

Anticipate a Resolution

As more and more dissolution of marriage cases are being resolved by some form of alternative dispute resolution, it is increasingly important for lawyers and the parties to anticipate the possibility of relocation in the future. It is good practice for the family lawyer to include in the mediated agreement a procedure for resolving future relocation problems that may arise.

Lawyers and mediators should recognize that shorter distance relocations may emerge and affect the nature of the current custodial partnership. If the parties share the children on a 50/50 basis, a move across the county may frustrate the existing plan. However, “short distance relocations” often are more vexatious than a move cross-country. Although the focus tends to be on driving times, traffic patterns, midpoint pickups, after-school activities, and school districts, parents’ realization that their original rotating custody plan can be set asunder by one parent’s move to the next county can be unsettling to coparenting.

It is increasingly common to negotiate restrictions and terms of the “short distance relocation” in the initial parenting agreement. Some of these restrictions may include a radius within which a parent must live to continue to rotate residential responsibility, delineation of pickup and drop-off responsibilities in the event of a short distance move, and anticipated changes to weekday contact to maintain a child’s performance at school.

The desire of one or both parties to a divorce case to relocate has become the rule rather than the exception. It is good practice for the family lawyer to recognize the probability of either a short or long-distance relocation in the future. Some may argue that the family practitioner’s inclusion of this issue in an initial mediation creates problems and adds additional expense to an already expensive process. Others believe that foresight in prenegotiating how possible future relocation issues will be handled is cost-effective and well worth the time, effort, and expense. As family law practitioners, mediators, and judges, we have all preached at one time or another that predictability and stability are of paramount importance to children of divorcing parents. Mediating relocation, whether at the outset of a nonrelocation case or during turbulent relocation litigation, gives hope that the future will be calmer and more predictable for the children we all wish to protect.

Published in Family Advocate, Volume 28, No. 4, Spring 2006. © 2006 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Carol Gersten served as circuit court judge and general master in the Eleventh Judicial Circuit, Miami-Dade County, Florida, from 1988 through 1999. She was a founding member of Miami-Dade County's specialized family court and was a faculty member of the Florida Judicial College as well as the Florida Advanced Judicial College, where she taught marital and family law. Judge Gersten retired from the bench in 1999 to move to Vancouver, British Columbia, with her husband. She travels extensively, maintaining a bicoastal mediation, arbitration, and private adjudication practice in Florida, Washington State, and British Columbia.

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