Child custody is probably the most stress-inducing issue in divorce. Parents want to do what is right for their child but also are dealing with their own emotions toward the other spouse. As a result, disputes are common. Sometimes, even when parents can come to an agreement, one of them may have regrets after signing it and want to reopen negotiations or try to get the court to set aside the agreement. This can be very difficult to accomplish in most instances.
In a recent case in our office, our client fired his last attorney and wanted us to ask the court to set aside the stipulation the client signed related to visitation. His attorney advised him to agree to the visitation schedule because he had a domestic violence complaint against him several years back. However, his wife also had the same complaint and finding against her. The client felt his attorney should have recommended fighting for better visitation since both parents had the same issues.
A parent can argue for setting aside a child custody agreement on the grounds that he or she was ill-advised by legal counsel, but this can be difficult to prove. Typically, this argument succeeds when the attorney had drug, alcohol, or mental health problems or grossly neglected the case.
Another basis for setting aside the agreement is if it’s in the best interests of the child to do so. While courts prefer that parents settle their disputes amicably, they will get involved to resolve conflicts and make changes to custody or visitation agreements upon a substantial change of circumstances if it is shown to be in the best interests of the child. This analysis is fact-sensitive and the court will look at multiple factors such as the relationship between the parent and child, participation by the parent in the child’s activities, the wishes and work schedules of the parents, and their willingness to cooperate with each other, and other factors.
If you have regrets about signing a custody or visitation agreement and want more time with your child, it will be important for you to demonstrate how the existing agreement adversely affects your child’s relationship with you. You should also be honest about past problems since they are likely to come out if your spouse is challenging your action.
It’s common to have doubts any time you settle. The best way to avoid them is to hire an experienced attorney who you trust to strongly advocate for your interests and give you good advice.
If you are considering divorce, contact us for help achieving the best result in your matter.