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Making a private custody arrangement stick

Filed under: General — Deborah @ 12:29 pm Tue 9th June 2009

My ex husband and I signed a private custody agreement when we separated 7 years ago (we are both now re-married to new spouses). Over the years it has been increasingly difficult for me to enforce this arrangement in it’s original form as he seems to have less time to spend with his children. He has made a number of changes decreasing his time with them and there doesn’t seem to be anything I can do legally to make him stick to it. Or is there?

34 Responses to “Making a private custody arrangement stick”

  1. Richard says:

    He clearly needs his head read,

    If it was a family court filled custidy agreement and he is in breach you can take him to task through the family court as there are large penalties outlined in law, however if it is a true private custody agreement it depends what the terms were and if there was a provision made for should either party not adhere to the agreement.

    Regardless also consider that if he has reduced the time he spends with the kids, does this now match what he agreed to pay to you or what he has been paying to IRD. In some cases you can effectivly apply to scrap the private custody agreement due to his reduced care. This would of course hurt him financially.

    If you apply for family assistance based on the care you have now, married of not he could then be faced with an IRD audit which we all love to hate, but lets face it the kids come first regardless of changes in our lives.

    Good luck

  2. Deborah says:

    Hi Richard, yes he does need his head read….not sure what sort of novel you would find there though!

    I am interested in a few points you have made. Our agreement is a true private one and there doesn’t appear to be a clause for reneging. I found this out about 3 years ago when he dictated to me his schedule no longer allowed for school pick-ups and drop offs (instead I drop them to him in the evenings and he drops them back in the morning before school, which defeated the purpose of a school pick up, getting to know their teachers, friends, sports events, homework etc). I contacted my lawyer and tried to enforce our agreement but my lawyer said it wasn’t worth the paper it was written on unless it had a court approval – very reassuring stuff from a lawyer! My ex requested a court appointed counsellor to “discuss” these changes and smooth the path for him. The result being one very biased against women counselling session and my ex getting his way (but more importantly the children missing out on valuable time with him.)

    And about 1 year ago my ex reduced the monthly (private, not through the IRD) payment he was making to just over half the original amount. He said his income had reduced so the new amount was based on the IRD schedule in line with his new salary. I have not had him audited as I believe bringing this level of legality into the situation makes the atmosphere tense for the children. Financially I stand on my own feet so I’m not sure if I would qualify for family assistance. However, reducing his hours of care would probably make him liable to pay more? But ultimately I would only be using the money as a tool to get him to spend more time with his children. A path I haven’t wanted to go down but I am feeling like my back is against the wall.

    I have thought of applying for 50/50 care now that the children are older but he has made it clear this wouldn’t work for him (if he isn’t on board with this then probably not the best answer for the children).

  3. Alastair says:

    Hi deborah,
    Making private agreements stick is notoriously difficult. Your X is missing so much. I raised my son alone. Hog tied my social life but wouldn’t change it for anything. My son certainly got a “Different” upbringing!

    Clearly this is all causing you stress. you can do without it.

    My suggestion is,

    Sit down with the children, attempt to find out what they want. Maybe they could write it down? Don’t forget to include any new partner. He is going to be part of this like it or not. (If it’s not – is he worth it?)

    Write to your X telling him what you and your whole family want, make no mention of child support – YET!

    Keep a full copy. Don’t go near him without a support person (Very trusted girlfriend?) certainly not a new partner or the children.

    There are 3 possible outcomes, 1) Full agreement! This is easy file in the family court for an order by consent. 2) Negotiation over bits. Again easy. Do it in writing. Avoid meetings. Once agreement is reached procede as in 1)

    3) he ignores your letter, bursts into flames. etc. You head to the Family court for orders.

    If this happens I encourage you to join Pauls News http://groups.yahoo.com/group/pauls-news/ Its hidden and you have to join. These people have done it Deborah, and succeeded! You to can succeed! Being hidden, you can vent, blub, or within reason say anything. It’s confidential and has rules. Those who run the group will ensure you are NOT put down in any way.

    Remember to achieve this you don’t have to help finance a lawyers new BMW. Doing it your self is more effective. Lawyers will differ, remember though – You are costing them money, and one thing they love is money.

    Finally – If you don’t already, KEEP A DIARY

    Finally, once you have an order by consent or the fights on Apply to IRD for child support. for all it’s problems, and it has many, atleast you can verify any sudden change of income.

  4. Deborah says:

    Hi Alastair, thanks for your comments.

    The children would like to revert back to the orignal agreement and see him as often as they used to but you can lead a horse to water…..

    It looks like my next step is give him one last shot at any changes he wants to make to our original agreement and then to have it filed in the family court. I have full support from my new husband (he loves and cares for the children like they are his own and supports my role as a mother…)

    I think you are right about switching the monthly payments over to the IRD system. This will keep him honest and put all cards on the table.

    Hopefully a court approved agreement will solve these issues. And yes this is very stressful, I hear of so many fathers who want to spend more time with their children not the other way around…I have said he can see them anytime he wants in addition to our arrangement but he has never taken me up on this offer.

  5. Alastair says:

    Hi again Deborah,
    If I may something from my male (And very possibly female) perspective.

    X partners find it very difficult to cope with a new partnes and even experience feelings of failure in that the new partner has made their X happy. It is worse when the new partner gets on with their children. Sorry if I have been obtuse. I have tried to keep it neutral, as I believe these feelings work both ways.

    One suggestion, ensure your new Husband is well out of site when the X calls. Give him room with the children. I feel he may be trying to say “I don’t feel like their father any more”

    On the other side of the coin, I have seen the damage that parental rejection does to children. It’s bad.

    I’m here to help, though maybe not on public like this forum. Again I strongly suggest you consider Pauls-News. It started as a mens group. Ladies are there, and welcome, and are very good at knocking off our rough edges.

  6. karan jiahrr says:

    guys..
    if you read between the lines this person is after$$

  7. Paul Catton says:

    Dear Deborah,

    You only have one legal recourse to take.
    That is with IRD Child Support to perhaps maximise financial contributions from your ex husband. Access cannot be forced upon a parent who wishes not to engage for whatever reason they may hold, perhaps, it might even justifiable.
    From your posting and subsequent comments their appears unresolved underlying hostilities.

    I am available at paulcat@xtra.co.nz to perhaps give further insights on the matter under private disclosure should you wish to avail yourself.

    Kindest Regards

    Paul Catton
    East Auckland Refuge for Men and Families
    (09) 271 3020

  8. Jim Bailey says:

    Deborah,

    There are a small, very small few of Fathers who don’t value their Kids – I suspect there is heaps more to this than you are saying – If I was to help I would follow my standard proceedure and require a Pvt hour or so with each of you to get the facts on both sides.

    From there we proceed and not before.

    If you can’t organise this get used to the current situation

    Onward – Jim

  9. Deborah says:

    Hi Paul

    My main focus is NOT financial (to all those out there who think it is clearly you are not reading my situation in the correct context! I actually earn more than my ex so this is completely irrelevant!)so the advice regarding monetary maintenance is secondary to my main concern that my children ask the question “Mum, why doesn’t Dad want to see us as much anymore?” Should I answer honestly and say because he is putting you behind his work and social commitments? No I have always kept my opinions to myself as I do not see the need to infect the children with my views, but ultimately the children are not stupid and can see for themselves the distance he is creating. Very sad indeed because I think he is a good father and they deserve the chance at a valuable relationship with him.

    And hi Alistair, neither parties have any issues with our new partners. My ex got re-married a few years before I did and seems very happy with the role the children’s new step-parents play in their lives. If my ex is unhappy with the contact my new husband has with his children he showing strange signs of this. I would have thought he would want to utitilise his time with them instead of cutting back his hours (thus pushing the children into our family unit more). But perhaps there is an underlying issue that I have not considered so thank you for giving me food for thought.

  10. Deborah says:

    Hi again Paul, sorry just re-read my comment and it looks like I was having a go at you regarding the $$ comment. This was directed to Karan so apologies.

  11. Alastair says:

    Thanks for the reply Deborah. I feel that you are totally on the correct path. Children can see see and form opinions. Include the children in your new relation ship, only discourage them (Don’t stop stop them, it MUST be their choice) call your now husband “Dad”. There are many alternatives, all personal to your family.

    In my experience Your X is destroying the most precious thing he ever had. The children may at a future date wish to contact him. Painful though it may be to you both (You and your husband) encourage it. Again children see things, they frequently have to see it with their own eyes. Temember that saying, “If you love a thing, set it free. If it comes back it is yours, if it doesn’t, it never was.”

    I feel a bit uncomfortable with the nature of this conversation. MENZ is totally public. You have no idea who is reading it. That is the reason for my discomfort. I encourage you to contact me directly (alastair65@gmail.com) or join Pauls-news. On the latter there are many who have been where you are, and you will probabaly provide support for others also.

    Shalom

    Alastair.

  12. Deborah says:

    Hi Jim

    No our situation is pretty straightforward. There are no hidden issues. We parted amicably and mutually and are now both married to new partners and seemingly very happy with the way our life paths have gone. I have always taken the high road regarding him seeing his children (just because I no longer want him part of my life it is still important for him to partake in his children’s future, they are after all his genetic connection and have his traits that need his input to balance their perspective). Even his own family (whom I am still close to) do not understand his unreasonable excuses to cut his time down). Thank you for your offer though.

  13. Jim Bailey says:

    And we wonder why many are thankful for the committee councelling that happens around Pauls, Chucks and Johns News at the time they get the advice.

    Most never return to share the real story of the results of listening but the figures show many FAMILY situations getting worse and the Stats suggest an aweful lot of people are getting very wrong advice.

    Meanwhile the figure of Children without BOTH Parents and those without One Parent, and who die in CYFS care, and those ABUSED increases.

    Most accept the figure is above 300,000 – Mark Shipman who did the initial research is now suggesting its well over 400,000.

    Time to reveiw the value of Committee councelling and many other issues that float around but never really get dealt with.

    Onward – Jim

  14. Scrap_The_CSa says:

    Hi Deborah,

    Firstly forget the Court as a solution – it will suck up your hard earned dollars, create conflict , invite psychologists to screw ith your childrens minds and above all not produce a solution that will achieve what you want or what the kids need.

    Does your employer provide EAP services – if they do I would suggest you ask the childrens father to attend with you and work through what the children need and how this can be achieved by mutal agreement.

    If their is no conflict my experience suggests that 2 or 3 sessions will see an “agreement” reached.

    The advantage of using EAP is that both parents retain “control” of the situation and its solution focused not adverserial, independent and keeps the children sheltered from what is adult issues.

    Regards

    Scrap

  15. Dave says:

    Deborah,
    You sound like an intelligent, caring and thoughtful person to me.
    1. Don’t go anywhere near the family court. It will make the situation much worse and you will regret it the rest of your life. It is guaranteed to be harmful for the children. In any case what would they do? – Get the police to force him to take them?
    2. Going to the IRD will also have a negative outcome and be counter productive in your situation. This is like beating him with a stick and then wondering why he stays away.

    What you need to persevere with is positive encouragement for him to spend time with the kids. Don’t do any negative things. You are an adult and he is an adult. Arrange to have a business like meeting with him to discuss it. Explain your concerns and desires for the kids to him. Explain the kids questions to him. Tell him they really need him and only he can fill that part of them. (Men secretly love to be needed). Ask him what you could do to encourage him to spend more time with the kids.

    In the end let him make his own decisions and leave the door open for him to spend more time with the kids. Perhaps he is going through a phase and in a year or so he will realise the kids are more important use of his time than other stuff.

    Remember: golden rule: only positive encouragement from you.

    Any negative stuff should come from else where.
    {A chat with some of us might make him wise up to what he has and what his priorities are!}

    Let us know how your meeting goes and we may be able to offer more help.

  16. SicKofNZ says:

    Is it an option that your children could live with Dad so as to have more time with him? It seems clear that you would pull your weight as the other parent of these children and so it might work out better with Dad as the custodial parent. How would your children feel about living with Dad and his new partner on a trial basis? Maybe then, you could show your ex how a non-custodial parent should act.

  17. Deborah says:

    Hi, I would love to try this approach as I think there are things both parties could learn from being on “the other side”. But alas I have already suggested this and ex has thought the children are too young (they are 10 and 13). But I will keep trying!

  18. Jim Bailey says:

    You are onto it Deborah – Onward – Jim

  19. Deborah says:

    Hi Dave, thanks for the compliment, you certainly start doubting both your intelligence and sanity through this process. I agree with your thoughts on the meeting/positive encouragement etc. So much so in fact I have already been down this track with him – several times. I could type a 10 page essay on the approaches I have already tried. But the bottom line is he keeps changing the rules and finding ways to lessen his parental role.

    I know first hand what the court experience is like for children and as a result I have never had a relationship with my father (as per my mother’s wishes for all the wrong reasons) But that is another story again…although this experience makes me even more determined to keep my ex’s contact with his children.

    I thought a “rubber stamp” might set things in stone and stop his nonsense once and for all.

    I will just be there for them and be the best mother I can be (which I like to think I am already doing) with or without his input and support. So far we have raised two very happy adjusted (a little bit worldly),intelligent, well mannered children – actually more me than we!

    If all he can provide is the odd weekend here and there then that is better than nothing. Can’t say I haven’t tried and sometimes a square peg really won’t fit into a round hole will it?

    Cheers gents!

  20. SicKofNZ says:

    Goodness, 10 & 13yrs too young? It’s awful when you try to help your children from being sad and it is out of your control. I wonder if your boys wrote to Dad explaining how they felt that it might help Dad to understand? Is your ex’s partner approachable with this subject? Do you think she has had any influence over Dad’s apparent new attitude towards your children?
    I do wish you and your boys success at resolving this difficult issue.

  21. Alastair says:

    Deborah, Sorry, 10 years is not to young. I obtained custody of my son at 9, and was caring for him from much younger!

  22. karan jiharr says:

    hmm a polite stonewall to the most obvious way of gleaning the real perspective from both ends.. why?

  23. karan jiharr says:

    usually this is an excuse provided by mums to prevent access.. you would love to try this approach.. seems to me you are making a lot of excuses rather than getting the ball rolling..we are only hearing from one party.. would like to really hear what the ex has to say…

  24. Maerk J says:

    Ok caim down,! we all pay chid support, but compile this? we all pay child support, but even when we pay child support till 19 years old we faild ! because we are resposible till we leave this earth.
    It does ‘nt stop at 19s old it stops when you stop Breathing.
    Your chid is fore ever.

  25. Dave says:

    I had week about with our daughter before she had turned 2 and the girl was happy and doing well.

  26. Dave says:

    Deborah,
    Why didn’t I have kids with you?
    Got a single sister?

    Perhaps this guy has had serious brain trauma!!

    Seriously, the immediate suspicion is that his new wife has a part to play in this but obviously we don’t know what’s going on.

    They way I like to express the importance to fathers of spending time with their kids is like this:
    Nobody ever lay on their death bed and said they wished they’d spent more time in the office.
    You can quote me.
    Dave.

  27. Deborah says:

    Hi Karan

    You sound a lot like my ex – I could pass his details to you and you could both have a whinge about stuff that is completely irrelevant to what the point is…?

  28. Deborah says:

    Hi sickofnz (surely not!) Good comments thank you. The children have already written their personal thoughts down in a letter to him (several times at different ages) as I thought this would be a good impartial way of getting their thoughts across. Still no joy with this one either. His new wife could be some of the problem as the visits certainly reduced when he found love with her. I know they are trying to start a family of their own and the children have overhead him saying he can’t wait for this to happen then he can have a proper family again….just one of the many comments I have had to go into damage control over and yes I do have a large headache from banging my head against the wall. (Oh here’s a thought, what about the gorgeous children he already has) Sure the unit no longer fits the white picket fence but what unit does these days?

  29. Dave says:

    What the…..?

  30. Dave says:

    Deborah,

    From his point of view, is it really about reducing the time he spends with the kids or is there something about the arrangement that he doesn’t like which is causing him to withdraw?

    Perhaps there is something about the arrangements that he really doesn’t, yet he realises he is not being entirely reasonable to you so he simply withdraws in stages.

    I don’t know how it is there on Venus but over here on Mars we sometimes withdraw rather than have a confrontation over something – esp when we think such a confrontation would only make things worse.

    Dave.

  31. Deborah says:

    Hi Dave, I have been trying the softly softly approach for years with mixed results. Might be time to call a round table meeting and approach the issues gently – he might like to get his partner involved also? I will suggest this and see how we get on…

  32. Dave says:

    Yeah I think if you can have a round table meeting amongst the adults then it is worth a try. I recommend you leave the kids out of that meeting entirely. They should be able to tell everyone what they want but that is not the only factor for the adults to consider. You could have a 2nd meeting involving the children once the adults have had a discussion.

    I think it is important to find out and understand what his motivations are. You can tell him you want him more involved. You can remind him how you missed not having your father involved at that age.

    If it was me I’d be explaining that at 10 and 13 they really need their father heavily involved in their lives because in a few years it will be much harder to have the same influence on them.

    Once they are teenagers they will get involved in risky things but they lack the mental development to properly assess the consequences. Studies show a heavily involved father is statistically the most important factor in how those consequences end out for the children.
    If he keeps his distance now it will most likely mean things will not go so smoothly over the coming years. It will be harder to build the same rapport with the children once they are controlled by raging hormones and place more stock in what their peers say than their parents.

    I guess all you can do at the end of the day is leave the door open for him.

  33. Dave says:

    P.S. you know if it was me I would also be pointing out that it is not fair on you (the mother) to have to do most of the child caring. These are more enlightened times and fathers are expected to play their full role these days.

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