Judge likely to nix agreement terms

My husband and I have reached an agreement in mediation that I think is really good for our kids. I was telling my friend about the agreement we came to and she thinks the judge won’t approve it. So, here goes — my husband moved into a one-bedroom condo in Boston, which is not at all appropriate for our children ages 2 and 4 to spend time with him. He is going to come to our house in Dover two nights each week to play with them after work and he is going to move back in every other weekend. We have a guest suite where he will stay. We also agreed that when he decides to move out of Boston, he can have weekends at his house if his new place is acceptable and he can have overnights during the week if he moves to Dover.

What do you think of the agreement?

I think your friend is right, depending on who your judge is, it may not get approved. You have a number of different issues that a judge might reject. First, your agreement is a modified nesting arrangement. In a typical arrangement, you would move out during his parenting time but that is not what you said. You are essentially supervising his parenting time for seemingly no reason. If you are willing to stay elsewhere on his weekends, it is more likely to be approved.

You mention he can have the children on weekends once he moves if the place is acceptable. Acceptable by whose standards? Yours? There needs to be some objective measures he can meet if this is going to work. The most obvious test is whether there is a dedicated place for the children to sleep. I assume that is the reason his current place doesn’t work — it is too small. If there are other reasonable objective measures you agree on, spell them out in the agreement so the judge understands you are not dictating subjective standards that your soonto-be-ex needs to live up to before he can independently parent the children.

Also, you do not get to have a say in where he can live in the future with the penalty of his not having weeknight parenting time if he doesn’t live where you say. He has a right to live where he wants. What if he moves to a neighboring town with a short drive to the children’s school? How far is too far? Some judges will approve an agreement if there is a minutes or miles to school test. Others would say you cannot impose a limit on where he lives at all.

Finally, the judge will likely have trouble with your agreed future terms because you cannot know today what the future will bring for your children. Child-related provisions are always modifiable based on the children’s needs so future provisions are not likely to be enforceable and have no place in your current agreement.