Mediate the Move: Quelling Clients’ Fears and Clarifying Options

By Carol Gersten

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 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. 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.

Most relocation cases are time-sensitive.

For two years the parties worked everything out. 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. George and Ann each hired lawyers.

This scenario represents a fairly typical relocation case. 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, deadlines usually 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 re-registered 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 clients’ underlying position and devising an alternative plan.

An alternative plan presumes that one party’s needs or rights can be substantially satisfied without endangering the other party’s needs or rights. An alternative plan preserves and protects the interests of the parties’ children for frequent, quality, age-appropriate contact with both parents. Most important, devising an alternative 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.

Relocation 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 needs that predicated the desire for relocation can be satisfied by the other parent, thereby eliminating the necessity of relocation.

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 and to include in the mediated agreement a procedure for resolving future relocation problems that may arise.

Lawyers and mediators should recognize that short-distance relocations might 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 cross-country moves. 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. 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.

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.

is a retired judge from Miami-Dade County, Florida, who now lives in Vancouver, British Columbia, Canada. She has an active mediation practice in both Florida and British Columbia.

Copyright 2007

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This article is an abridged and edited version of one that originally appeared on page 339 of Family Law Quarterly, Fall 2006 (40:3). For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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