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Vague vs. Specific Custody Terms in Divorce Mediation

by | Dec 7, 2023 | Child Custody, Mediation

A common subject of conversation when I am working with couples who are resolving their divorce through mediation is a desire on their part to keep things very simple.  Sometimes when it comes to sharing the children they are confident that they will be able to work together as a team in the best interest of their children and thus don’t want to spend too much of the mediation time hashing out specifics.  My experience is that the Court will accept very vague terms.  A typical example is: “The couple shall share joint legal custody, and the primary residence shall be with one spouse and reasonable visitation provided to the other spouse as mutually agreed between the parties.”  In today’s blog we grapple with the reasons for investing a little more time to capture specifics, how flexibility works with specific schedules, the pitfalls of a vague order and some other considerations to keep in mind when approaching the vague vs. specific issue.


The Reasons for Hashing out Details.  One big reason for fashioning specific child sharing terms, capturing them in the settlement agreement and having them made Court orders is to assure accountability between the parents.  When we write up the custody/visitation terms in a settlement agreement, we define each parent’s right to enjoy time with the children as well as clearly delineate the responsibility of each parent to provide care for the children.  If the agreement says the children shall be with one parent on Mondays and it is Monday, in the absence of agreement to do something different that parent clearly has the right to have the children on that day.


Taking some time to add detail to the regular child sharing schedule as well as to invest time in putting together specific holiday and vacation provisions gives all involved a road map to operate from.  Having specifics on paper results in each parent knowing precisely what to expect so they can structure their life accordingly.  The detail allows for those involved to make plans with a clear expectation that those plans should not get disrupted unless there is some agreement to do so.  


Consistency and continuity is also important for the children.  It is every bit as important for the children as it is for the parents to know what the sharing schedule is and when they can plan on spending time with each of their parents.  I understand that families that elect not to put specific schedules down on paper will still come to unwritten agreements that provide consistency, continuity, clarity and understanding without it all being captured on paper.  All the same, everything is all the more clear when it is spelled out and signed off on in the agreement.


Specific terms are there to show the way when there is conflict.  When things are agreeable between the parents it might be easy to navigate effectively sharing the children.  When there is disagreement and any sort of escalation of conflict, it is extremely valuable to have the specific terms hashed out on paper to fall back on to show the way despite any strained communication.  I am an advocate for taking the time to put together some clear terms in your custody orders so that they are there to provide clarity for all the above stated reasons. 


What about Having Flexibility?  Things happen in life and the most effective way to be able to meet the needs of the children is for the parents to be able to work together and provide each other with flexibility as life happens.  The specific terms of the agreement are not to get in the way of the parents agreeing to do something different when it makes sense.  I joke that the Judge will not come knock on your door to try to hold you to the terms of the agreement when you and the other parent have agreed to deviate.  No issue will arise unless there is disagreement about the deviation.  Couples can make adjustments on the fly and life will move on with no problems so long as they can continue to agree.  As soon as they are in a place of disagreement they have the terms of the agreement/order to fall back on.


Why Vague?  The biggest reason I have heard from couples who elect to keep things vague is they are confident that they will always be able to work together to sort out the sharing schedule.  With such confidence they don’t want to spend the money on taking mediation time to work through the details involved in getting specific.  Sometimes the couple may have very complicated and ever changing schedules which make it impossible to pin down specifics.  Keeping things vague is necessary since their presently existing responsibilities might change overnight.  With such a dynamic they know there will be an ongoing need to work together so trying to capture specifics is just a waste of time from their perspective.  


The Pitfalls of Vagueness  Using the vague custody arrangement I referenced at the very beginning where one parent has “reasonable visitation as mutually agreed” a clear pitfall is what happens when there is not mutual agreement.  In this case the one parent has the children at all times where there is no agreement for them to be with the other parent so if there is conflict the one parent is at the mercy of the other parent to have the schedule dictated.  Admittedly, the reason couples agree to vague terms is because they are confident that the other parent will reasonably share the children.  It likely will never become an issue for them.  There are unforeseen circumstances that might arise that could get in the way of clear and effective co-parenting so being specific at a time when there is no conflict might well be worth the investment of time and energy so that it does not become a challenge when conflict arises.


Another pitfall is the possible lack of clarity in the sharing schedule making it harder to proceed with plans for future time frames, for holidays, vacations, etc.  Having things mapped out on paper provides the working structure for which the parents can make plans.  If there is a need for deviations, the couple can talk about it and make adjustments to accommodate the changing circumstances.  Otherwise, life moves on consistent with the written roadmap.


Don’t Fret, the Court Reserves Jurisdiction.  Whatever custody and visitation terms you put into your divorce decree are modifiable by the Court whenever there is a change of circumstances.  If in your agreement you kept things vague and problems have arisen in working with the other parent to agree on sharing terms, the Court can be enlisted to make more specific orders.  With vague terms in the agreement and disagreement between the parents as to how the children should be shared, this would very likely be recognized as a change of circumstances warranting the Court stepping in and making a more detailed order.  Whenever I have a couple who, despite my urging to be specific, decide to go the vague route, I invite them to return to me if they run into problems in the future.  Couples can return to mediation if there is agreement to do so, or if either is not willing to continue with mediation, the Court reserves the ability to further address the issue.


The decision is yours as you mediate your custody and visitation terms.  You can take the easy route and set forth vague terms in your divorce agreement.  I have worked with a number of couples who have gone the vague route and have never looked back.  I have also worked with couples who have had to return to mediation and/or to the Court to establish more specific terms when problems arose.  My input is to take some time to capture some specifics.  It will make expectations and responsibilities clear.  It will provide a road map for the child sharing path forward and it will not get in the way of you and the other parent making adjustments as the need arises.  Parents and children alike benefit from the consistency, structure and clarity provided by putting the work into adding as much detail as possible to the child sharing agreement.