Going into Mediation...help

[Priority1]

My ex and I haven't spoken since January 2023. She has since been granted a temporary restraining order against me that expires later this year, even though I have never done anything to her. We have a 1-month-old son and we have court-ordered mediation at the end of the month.

Since January she has put on a distortion campaign against me and is asking me only to have supervised visitations with my son. The Parenting Agreement laid out by the court is straightforward and gives me slight hope that she'll be reasonable, although I'm still apprehensive. I have put what I want in the Agreement which includes joint legal/physical custody with equally shared time between both parents. Just waiting for her response now.

Just wondering if anyone has any advice or encouraging words. I'd appreciate it! I am also wondering if I should ask for full legal custody, or wait to see if things work out with this agreement.

Thanks!

[ForeverDad]

This is somewhat similar what my then-spouse did when we separated when my son was 3 years old, now an adult.  We did end up divorced though she delayed every step of the way since she had a favorable temp order.  (I had no temp custody and only "typical" alternate weekends.)

I will try to keep in mind that your child is even younger than mine was.

What is your current temp order status with custody and visitation?  One comment I make is that there's a risk that even a "less bad" temp order you now have may persist into future orders without efforts to use time-tested strategies to avoid such an outcome.

Like you, mine also filed for no visits or supervised visitation.  When we showed up for our full hearing, the CPS investigator stood up and stated they had "no concerns" about me.  Sadly, at that time they were only discussing me and not her as well.  Even quickie psych evals couldn't reveal our parenting inclinations, that took an in-depth Custody Evaluation that took months during the later divorce process.  If you're not married then there will be opportunity to have a Custody Evaluation at some point so appropriate long term orders can be properly determined.

Do you have any documentation (texts, emails, recordings, damaged property, etc) or witnesses of her prior actions applicable to her claim of DV?  Many people with BPD (pwBPD) actually do (projection) what they claim others have done to them. If so, then you could file for a similar order of protection/restraint against her.  At least it would change the current "perp/victim" scenario into one more complicated and less one-sided, then the court's professionals would have to scrutinize both of you rather than just you.

My ex immediate filed for OP against me.  I soon filed one against her.  My court wouldn't let me report incidents prior to six months before we filed in court, said they were too old or stale legally to matter.  My court was reluctant to continue the matter so when her lawyer withdrew her bogus claim, court dismissed mine.  We still have a contentious divorce and it didn't stop her from making allegations to every agency or professional she could find.

Is she claiming she can't share more parenting time with you because she's nursing?  That claim, as emotional as it sounds, is weak since there are various companies selling breast pumps that enable a mother to express her milk, refrigerate/freeze it to pass along at child exchanges.  (Even working mothers are away from their babies for long periods of time and use breast pumps.)

About mediation attempts... I emphasize 'attempts' because if you reach a successful mediation then you either have a miraculous mediator or you've gifted away far too much.  It's okay if mediation fails.  That's common in our sort of high conflict cases.  Mediation typically requires negotiation, give and take, and your ex likely won't be reasonable.  She will probably hide behind her "he is evil and totally bad" mantra.

If mediation in the same room is too conflicted (triggering her to overreact), you can ask for separate rooms.  As I said above, mediation does not have to succeed.  Even if the mediator cannot report the details to court (a black box status as is the case in some states) be the reasonable and responsible father, the one seeking solutions and not creating obstructions and problems.

Many of us here have found that joint custody is better than not having it but still leaves you wide open to obstruction at every turn.  Remember, this is two decades going forward and just being a parent (such as weddings, grandchildren, etc) extends into forever.  Ponder how to reduce the impact of future disagreements.  For example, all too quickly your child will reach school age.  If you can leverage that now-distant issue into having the "decision making" or "tie breaker status" then that will be less you'd have to take to family court in the years to come.

Also, will the court issue an IRS compliant order (I think it is IRS Form 8332 or something similar) that specifies how each parent can claim or relinquish child deductions/credits on tax filings?  Alternating years?  Overnights mean a lot to IRS decisions, a typical question is how many months of overnights each parent had.

[ForeverDad]

I am also wondering if I should ask for full legal custody, or wait to see if things work out with this agreement.

I made some observations in my prior post touching on this question.  Likely you may not actually get full legal custody unless your ex is very obviously incapable of parenting responsibilities.  (And unlikely unless you walk out at least equal parenting time.)

Do you want to be an involved parent, or give the impression you don't mind being sidelined?

I had a two year divorce, the last step before the trial was scheduled was a Settlement Conference in my lawyer's conference room.  I recall beforehand, while in my lawyer's office, her lawyer came in, sat down and started talking, just the 3 of us.  One of the things he said was that he himself was divorced and he had alternate weekends (same as what I then had during the temporary order).  He suggested that as something to agree with.  I said, "Sure, sounds good to me but I don't think Ms FD wants alternate weekends."   He was quiet after that.

By the way, that was one of the few times in my life where I had a wonderful answer at the right time.  I savored the moment.

This prompts me to discuss the value of Leverage.

If you only ask for equal time or joint custody, then you've locked yourself into a "maximum return" scenario, you won't get more than that.  However, if you ask for more... then you might get it, no guarantees of course.  To get more you'd have to help the professionals conclude ex's custody and parenting would be problematic, even abusive.  The legal field always hopes both parents can at least minimally "get along" and your task, such as in mediation, is to make obvious that you would be the preferable parent.  Sadly, it may take time for the court or professionals to agree that you're the better parent.

Here's another example... I have a relative who felt she couldn't ask me for help.  Afterward, when I found out I told her that I could have helped.  "If you had asked me, I might have said Yes.  By not asking then we're both stuck with No."  Does that make sense? Ask since even if you don't get a Yes, at least you tried and might have gotten something a little better.

And you may be able to trade some things.  I tried that and succeeded.  I didn't want to have to follow my ex around in the years to come.  (I have never moved but it turned out she moved at least 4 or 5 times, once out of the county.)  So when she was looking bad and tried to settle on Trial day, I stated one term above what the Custody evaluator had recommended months before - I agreed to settle only if I became the parent in charge of school.  It was a bit of brinksmanship but it worked.  And within a couple months her school gave me one day to register our son in my school even though the school year was about month away from ending.  (They would have been stuck with her and silent if I didn't have that one bit of Leverage.)

Despite my ex starting out our legal cases with her facing a Threat of DV charge, I started with no custody and alternate weekends in two temp orders (during separation and divorce process) that lasted unchanged over two years.  I walked out eventually with Shared Parenting and equal time.  (My ex decided to avoid our Trial so I held out for one additional position, that I would have responsibility as Residential Parent for Schooling.  That gave me a very slight edge.)  The next 6 years we were in and out of court, generally her obstructions and disparaging me.  When I sought and obtained legal custody, our Guardian ad Litem (GAL) declined to support me for more parenting time since that would remove the option for ex getting child support.  A few years later I went back to court and got majority time during the school year, largely due to testimony from school teachers and partly due to her regularly disparaging me in son's presence.  Eight years in all and her entitled balloon of Mother Trumps All finally deflated a bit and we never went back to court.

[Priority1]

Custody and Visitation are ongoing, there was an agreement in the RO that she could communicate with my mother. The agreement would allow us to set up a time to see my son in the hospital. She ended up changing her mind last minute while I was at the hospital. The RO expires in a few months and we have a strategy for the next hearing, but I will definitely add your advice! There's no proof of any of her allegations. I have a video of her not letting me leave the house for work because she had again accused me of cheating on her, which ultimately led to me jumping off a 2nd story balcony. I also have all of our text messages that show nothing but her always checking in on me.

You're absolutely right about the "maximum return" scenario. I do want to be an involved parent. What makes everything hard is that I am under contract for work and she has left the state. I am going to ask for everything that I want and that's full custody w/physical being alternating every 3 months until Kindergarten. I've also added a lot of provisions about not using our son to carry messages between us, not talking bad about the other parent while our son is present, things to smoothen out exchanges, etc.

The mediation is a little different here. The first one is w/out lawyers, where I am presenting the above conditions for her approval. She'll disagree, , send me a response, and then I'll probably disagree, so we end up with the mediator still w/out lawyers. At least that's how I understand the process thus far. Great advice on looking for things to settle now, that will come up later in the future.

Thank you for your advice!

[GaGrl]

Experiences and advice above are valuable.

Be assrrtive, be confident. Be strong.

[ForeverDad]

If you are in the USA... There is a law that requires all states to have a basic format.  If one parent has moved away then the case should begin in the historical (local) court's jurisdiction.  Generally, the spouse that has moved away must have established 6 months of residency elsewhere before being able to file in the spouse's new jurisdiction.

https://www.divorcenet.com/resources/basic-divorce-residency-requirements-in-your-state.html
https://www.covinadivorcelawyers.com/covina-divorce-blog/2017/september/is-there-a-residency-requirement-for-me-to-file-/

Currently you probably have the home field advantage - it might be more complicated if she didn't have the baby in your area of residence.  Don't Gift it away.

As for mediation, some states do not allow the presence of lawyers.  However, if a sticky issue arises or one you hadn't previously discussed with your lawyer, you can always call a break or restroom break and try to contact your lawyer or other trusted person while on that break.

As I wrote before, you are allowed to be just as firm on your terms as your ex is on hers.  If mediation fails then likely the disputed items are referred back to court or some other professional.  Beware that the mediator may sense you're the more reasonably normal parent and try to pressure you to give in just to wrap things up.  Be prepared to hold firm to your parenting stance.  (Your lawyer may advise you in advance which items may be out of your power to control.)

In my case we were ordered to have up to 3 mediation sessions.  At the first session we went through and agreed to all but a few material or financial issues.  We stalled on custody and a parenting schedule.  Ex was determined our son was "her" child, that's how things were in her native culture.  Factoid:  She was born and raised half her childhood in the state I resided in when I met her.  Mediator countered, "We're in the USA, not there."  (Another factoid, but I failed to mention it in the session:  Her mother let her father raise her two older brothers, her mother and the abuser SF raised her and her sister.  Well, I was the father of our male child, according to her parents' example then shouldn't I raise our son?)  Mediator saw we were at an impasse, ended the session and said "Come back when your positions change."  (We didn't go back.)  She didn't want to leave at the same time as me, still posturing as the fearful stbEx, so I stayed behind until she had driven away.  As she walked out the door the mediator commented to the air, "This woman has issues."  After one session.  Mediation failed as expected but at least I tried with good faith efforts.

Since mediation is often the second step — first generally is the temp order for temp custody and parenting schedule — then yes mediation is okay.  However, it often fails because the other spouse is too entitled and demanding.  So you have to enter knowing it will probably fail.  If mediation succeeds then you have to ask yourself whether you negotiated or caved.  It largely depends upon the other spouse's perspectives which can vary from person to person... Is she distracted by a new relationship?  Is she more focused on her adult activities and finances or does she view the children as extensions of herself?

Let me repeat myself.  If you cannot reach common ground then let the mediation fail.  No one will look down on you or criticize you.  If I had met my ex's terms then I would have walked out of the divorce as an alternate weekend dad.  But I stood up for myself and my son's interests as I saw them and though the divorce took longer I walked out with equal time and with school decision making.

By now you've learned you can't make your spouse do anything she resists.  Likely you've held on longer than many other men would have.  Accept that reality.  Get the best (or least bad) custody and parenting order.  Move On.

[Priority1]

She didn't have the baby in my area of residence, she had already moved out of state. I will definitely look into it more. I also believe an attorney told me that if I had any idea my ex would do any of this, I could have filed an injunction on her to keep her from leaving the state. At the time we had mutually split and both agreed to move back and co-parent, so I never thought it'd be necessary.

Your responses have definitely made me feel more confident about the mediation. I submitted the Parenting Agreement and asked for what I wanted. I always say expect the worst and hope for the best and it's probably more true now than ever. I am currently working on getting together things that I will be able to negotiate with and still get what I want.

I'll see what happens and if I don't feel good about the terms then I'll disagree and we can move on to the next mediation with the lawyers present.