What can be included in custody agreement

[ProSeAgain]

What is the name of your state (only U.S. law)? FL

My ex and I separated in June, 2003, and I had our two children with me (they were 4 and 5 at the time). I moved to NC and he moved to Fl. We had to be separated a year and a day in NC before we could file for divorce, in the interim, we had an attorney draw up a separation agreement - which stated visitation info, child support amounts, payments for uninsured medical, etc., and that I had sole legal and physical custody of the kids. However, this agreement was not recorded with the divorce decree, which was filed in NC. In Mar, 2005, the kids and I moved to FL and I registered the child support order in the applicable county (this child support order is the only document recorded anyplace; no parenting plan, no visitation plan).

Now, fast forward 4 years. My son moved in with his Dad in January, 2009 and his Dad wants to make it legal - which I don't have a problem with. I included a clause in the proposed agreement stating it was contingent on my ex getting our son into counseling (I have previously had him in counseling and was planning to start it again prior to his going to live with his Dad) and that counseling must continue until the counselor and both of us felt it could/should be stopped. He just told me his lawyer says that health issues cannot be included in custody agreements and I wanted to know if this is a true and/or accurate statement. Since this is "our" agreement, can we not put in it what we want, as I have seen other people do? Sorry this is long. Thanks for your help.

 

[Ohiogal]

What is the name of your state (only U.S. law)? FL

My ex and I separated in June, 2003, and I had our two children with me (they were 4 and 5 at the time). I moved to NC and he moved to Fl. We had to be separated a year and a day in NC before we could file for divorce, in the interim, we had an attorney draw up a separation agreement - which stated visitation info, child support amounts, payments for uninsured medical, etc., and that I had sole legal and physical custody of the kids. However, this agreement was not recorded with the divorce decree, which was filed in NC. In Mar, 2005, the kids and I moved to FL and I registered the child support order in the applicable county (this child support order is the only document recorded anyplace; no parenting plan, no visitation plan).

Now, fast forward 4 years. My son moved in with his Dad in January, 2009 and his Dad wants to make it legal - which I don't have a problem with. I included a clause in the proposed agreement stating it was contingent on my ex getting our son into counseling (I have previously had him in counseling and was planning to start it again prior to his going to live with his Dad) and that counseling must continue until the counselor and both of us felt it could/should be stopped. He just told me his lawyer says that health issues cannot be included in custody agreements and I wanted to know if this is a true and/or accurate statement. Since this is "our" agreement, can we not put in it what we want, as I have seen other people do? Sorry this is long. Thanks for your help.

YOu can. But a court will NOT force a counselor to treat a child if the parents believe the child should be treated and the counselor does not. The court order is NOT binding on anyone but you and he -- so a counselor or health insurer or doctor or therapist would not be bound by it. The way it is written would not be enforceable and may be what his attorney is talking about.

 

[ProSeAgain]

Thanks for the reply - I did think you could agree to what you wanted (within reason, of course . I really do just want the agreement to be binding betw. the father and myself. I only included the counselor so that it wouldn't just be me or him deciding when counseling should stop. Would the agreement be enforceable in FL if I took out the verbiage related to the counselor?

 

[Ohiogal]

Thanks for the reply - I did think you could agree to what you wanted (within reason, of course . I really do just want the agreement to be binding betw. the father and myself. I only included the counselor so that it wouldn't just be me or him deciding when counseling should stop. Would the agreement be enforceable in FL if I took out the verbiage related to the counselor?

I don't know what all your agreement states so I can't comment on it all.

 

[ProSeAgain]

It's a one paragraph agreement that says Dad will now have primary physical custody of son, contingent on Dad getting son into counseling within a certain amount of time, otherwise primary physical custody reverts to Mom (me) and that Dad, Mom and counselor must agree to terminating counseling; I will retain primary physical custody of daughter; and we both have shared parental responsibility of both.

However, I just received an email from Dad, that includes part of an email he got from his attorney and she doesn't say this clause cannot be included, but that she doesn't recommend Dad sign the agreement with it in because we (M & D) are non-mental health professionals and could force our son to continue counseling, which could be extremely harmful to our son.

On a side note, I just found out today that Dad was using an attorney for this (I thought this was being done just between the two of us). So, I asked him to provide his attorney's name and number, since I will be handling this pro se. He hasn't provided this info yet, but my question is: does he have to?

 

[Ohiogal]

It's a one paragraph agreement that says Dad will now have primary physical custody of son, contingent on Dad getting son into counseling within a certain amount of time, otherwise primary physical custody reverts to Mom (me) and that Dad, Mom and counselor must agree to terminating counseling; I will retain primary physical custody of daughter; and we both have shared parental responsibility of both.

A court will NOT enforce anything that states that custody will revert in the future. Custody is based ON CURRENT situations and you cannot set up a future situation for custody.

However, I just received an email from Dad, that includes part of an email he got from his attorney and she doesn't say this clause cannot be included, but that she doesn't recommend Dad sign the agreement with it in because we (M & D) are non-mental health professionals and could force our son to continue counseling, which could be extremely harmful to our son.

Agreed with that. And with what I said before still holds.

On a side note, I just found out today that Dad was using an attorney for this (I thought this was being done just between the two of us). So, I asked him to provide his attorney's name and number, since I will be handling this pro se. He hasn't provided this info yet, but my question is: does he have to?

Nope. He doesn't have to provide it but if the attorney enters an appearance you will eventually have it.