Mediation blues
October 12, 2013 7:21 AM   Subscribe

MINML (metafilter is not my lawyer, but oh man, that would be one kick ass lawyer) Have you even been thru mediation with an ex-spouse over parenting plan stuff? If so, I have some basic quesitons...brief background below...

My ex and I have been apart for 5 years. We have been coparenting 5050 during that five years. We've never gotten along like gangbusters, and we have certainly both had our share of email/text flame-outs...but we've also managed to keep things pretty downright friendly about 70% of the time. Friendly to the point where I will go to her and her husbands house to have dinner prior to picking our daughter up.

Recently I announced that I my daughter and I will be moving households into my girlfriends house. Happy days. Except not. Briefly after this I get a letter from my ex's brand new lawyer requestion mediation. I immediately question my ex about this and she is silent, until eventually she says 'you need to get a lawyer and go to mediation'. I then question her lawyer, asking what the mediation is for specifically and she more or less tells me. There are 5 mediation points, most of it is pretty vague stuff (ie communicate better) but one actual concrete thing is that she wants to establish Right of First Refusal. Im on the fence about right of first refusal cuz of the logistical headaches and really, we alternate solid weeks with our daughter so its not like anyone is lacking time with her, but at the same time man, I'd waaaay rather give in to right of first refusal before a custody battle. ugh

Two things are bothering the heck out of me.

1. I've questioned my ex about what her actual intentions are. ie, is this just a stepping stone to start a custody battle? She will not answer. I don't know if she takes glee in it, or if her lawyer told her to just not talk to me about it, but if it truly is mediation where we learn to communicate better and blablabla...what kind of lawyerly strategery is it to make the other party go thru hell on earth and have almost no choice but to simultaneously escalate because there is no reassurance of good intention? It seems needlessly aggressive to me and I'm terrified. (Over the past couple days I've talked with my ex about other stuff, halloween costumes and stuff like that)

So the question for #1: Is this a common mediation strategy even when the end game IS actual mediation over the finer points of a parenting plan? Because it sure seems like a scorched earth plan. Have you been through something similar?

2. After emailing back and forth with the lawyer I agreed to go to mediation but said that I would need some time to get some funds so I said early November. Is that a ridiculous time to ask her to wait? Is that grounds for considering me to be uncooperative?

I know I need a lawyer, and actually that makes me really really sad. My ex has been with her husband almost the entire past five years. I was really excited to move in with my girlfriend and be able to offer my daughter the same happy 2 adult household that my ex has been able to offer her. I also naively thought that this would be a positive turning point for my ex and I. Instead it is a living hell on earth. At any rate, I can't talk to a lawyer until Monday, so if anyone could chime in with their experiences and answer my questions I'd be eternally grateful.

posted by ian1977 to Law & Government (14 answers total)
Hi. I am not a lawyer, and am not your un-lawyer, but I am more than passingly familiar with mediation and custody issues.

First of all, do you and she currently have joint legal and physical custody? Is there a court order for this? Have you read up on the procedures for requesting custody change in MN? Because this doesn't sound like the run-up to a custody battle to me, and if your parenting has been sound and your custody arrangements in the best interest of your child, it doesn't sound like it would be a particularly successful gambit anyway.

It sounds more likely your ex-wife is not happy with your choice of partner and wants ROFR added to the custody agreement because (at a guess) she doesn't want your girlfriend to ever be the sole adult in charge of your daughter. This is pretty much what mediation is good at working through.

Yes, you need a lawyer, but you also need to gain control of the fear that is driving you here. Your ex asking you for mediation and proposing ROFR is not an indication of a looming custody battle and certainly not hell on earth. Hell on earth is losing a custody battle.
posted by DarlingBri at 8:04 AM on October 12, 2013 [2 favorites]

First thing I want to say is relax. You are still Dad. This might suck, but so it goes. Get a lawyer - a good one - and gear up for a fight. Just remember, it's business - try not to take it personally.

I don't know about where you are in MN, but when I went through mediation, lawyers and SOs were not allowed; it was me, her, and a mediator. It's a fairly benign process and was actually a requirement of the family court where I was at.

I agree with DarlingBri that the ROFR likely is to prevent your girlfriend from taking care of your daughter. However, ROFR cuts both ways and would also prevent her husband from the same. Sauce for the goose, after all.

But who knows what she is thinking or is motivated by ? Anyway, it doesn't matter. Get some idea of what you would like the parenting situation to look like, things you will give on and things you won't and go into mediation with that in mind. And remember, she can't do shit, really, without your cooperation - mediation is only binding if you both agree to be bound by it.

You should be very very careful in what you say and do with the other parent. Gather and organize all the documentation you have and only have conversations with her over email. Keep things "customer service" poker face professional.

I suspect that this is going to turn into a larger custody battle. Prepare for that, but don't worry about it now. Keep your chin up. Things are much better for fathers now than they were when I went through this ~20 years ago. You can memail me if you need an ear.
posted by Pogo_Fuzzybutt at 8:38 AM on October 12, 2013 [1 favorite]

Response by poster: Thanks DarlingBri and Pogo Fuzzybutt, I already feel a lot better.

Yes, we have joint legal and physical and we have since day one of our divorce.

You're right, this is not literally hell on earth. Maybe like a really cruddy subdivision of Purgatory though.
posted by ian1977 at 8:46 AM on October 12, 2013

2. After emailing back and forth with the lawyer I agreed to go to mediation but said that I would need some time to get some funds so I said early November. Is that a ridiculous time to ask her to wait? Is that grounds for considering me to be uncooperative?

Dunno how I missed this, but.... if she wants to paint it as you being uncooperative, then she will do that regardless. Everything you say and do can and will be used against you. Do what you gotta do, but remember that simple fact.

my ex claimed that my calling our son twice a week was harassment, and that I was neglectful because I didn't call every day. sigh.
posted by Pogo_Fuzzybutt at 8:47 AM on October 12, 2013

hi, i used to do divorces in california, but i've been out of the game since 1995 and this is not legal advice.

do you have a court order in place for the current arrangement? if not, you need to get one, tell your lawyer some guy on the internet said so.

if you do have a court order, the onus is on the party seeking modification. does the law in your state require mediation upon demand of her counsel? if not, you are under no obligation to dance to her tune.

be careful what you say in emails to her lawyer. provide no information about your situation, but try to get as much information from her as you can. if you're good at this, it's like taking a free deposition. it's not unreasonable for you to know in advance precisely what the objectives of this mediation would be. mediation is premature unless the moving party knows, and can articulate to you in writing,, exactly what she wants. her lawyer's job is to tell you these things, that's why we're called "mouthpieces".

then you get into the "why". is your ex just trying to control your life? you didn't give her a hard time when she remarried, and you are entitled to reciprocal consideration. "please explain your reasons for seeking a right of first refusal." how can you mediate anything without knowing these reasons? you don't want to go in blind, as with any rabbithole, you want a preview of what it looks like before you jump in; insist that you be provided this information before even contemplating mediation.

i am sorry this is happening to you. every dollar billed by the lawyers is a theft, in the final sense, from the future of your families. maybe all it will take is a single letter from your lawyer to shut this down.
posted by bruce at 9:03 AM on October 12, 2013 [4 favorites]

I can't answer 1 and 2, except to guess that your kid's mom isn't comfortable with your girlfriend.

In the bigger picture ... from an outsider's perspective, getting along 70% of the time does not say that you guys get along great, but rather that the two of you get along great except the third of the time when you have to work through difficult things.

So, with that as my lens here, you should get a lawyer (you know that) and as a longer term solution to the communication issues, and as a way to save money and reduce stress, look into both couple's therapy and mediation (instead of courts) for talking about and resolving issues.

Good luck. I am sure this situation sucks. Just be good to yourself and your kid, but also listen to your ex. You don't have to, and often won't, agree, and that's OK.
posted by zippy at 9:10 AM on October 12, 2013

By communicating back and forth with her lawyer, you've already said too much to the wrong people.

Get a lawyer to find out what this is about, if you have to agree to the meeting at all, who will be present, etc..

"Announcing" you and GF were moving in together with Daughter in tow 50% of the time BEFORE consulting with your own attorney was foolish, and likely from your co-parent's perspective, aggressive and combatitive.

In other words, you lit the match. Hire a professional to help you put out the smoke before it turns into a blaze.
posted by jbenben at 9:16 AM on October 12, 2013

Re the mediation schedule, if you can say "My ex-wife requested split-cost mediation and we sat down at the table 30 days later" that is more than reasonable in the eyes of any court I'm familiar with.
posted by DarlingBri at 9:22 AM on October 12, 2013

Response by poster: Agreed jenben, a lawyer would have been smart then. But I naively assumed that since she moved in w her now husband 6 months after we split up that my handling of that matter would have been reciprocated. If I was shrewd I would have gotten a lawyer back then to get the upper hand but that's not my nature.

Sigh. Life could be so simple.

Thanks for the replies.
posted by ian1977 at 9:26 AM on October 12, 2013

Response by poster: One added point....ex has worked in law offices for 15 years and she kinda gets a woody for anything law related.
posted by ian1977 at 9:31 AM on October 12, 2013

Just FYI, it's very hard to change custody. If you have joint legal custody now, you will probably continue to have it, your ex might want to change a part of your joint parenting agreement, and the first step to that is mediation. A mediator isn't the worst thing in the world. Sometimes people would rather use them then have an emotional conversation without a 3rd party present to guide them.
posted by katypickle at 10:41 AM on October 12, 2013

Don't underestimate the potential for a change in financial arrangements. Courts increasingly regard cohabiting as roughly equivalent to a remarrying and may remeasure your resources and perhaps increase your share of support costs, or award support if none has been awarded in the past.

In general don't regard your ex-wife's interest in your girlfriend as inappropriate. While I'm sure untrue of your girlfriend, you need to acknowledge that new romantic partner are the biggest source of abuse and neglect for children of prior relationships. Your ex has a right to make a determination that your new living arrangements are appropriate and safe for your daughter.
posted by MattD at 12:33 PM on October 12, 2013 [5 favorites]

Response by poster: Thanks MattD. I don't think that is the case in MN. Her husbands income doesn't count towards anything so I can't imagine my girlfriends would. I don't really think finances are the crux of the issue.
posted by ian1977 at 1:52 PM on October 12, 2013

I am completely not a lawyer and have no real experience with this, but how conservative/religious is your ex? I know lots of people like that who very emphatically would not want their children to be in a home where the adults are cohabitating while unmarried. They consider it a huge moral issue and something to be avoided at all costs.
posted by CathyG at 3:43 PM on October 12, 2013

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