Don’t Overlook the Practicalities when Dealing with Visitation

January 29, 2014 § 1 Comment

When Wesley and Janet Jaggers got their irreconcilable differences divorce in April, 2004, Janet got custody, and Wesley got visitation.

Soon afterward, only three months after the divorce, they agreed to a modification judgment that included the following language:

[E]ach parent shall allow the children to attend and participate in the scheduled extra-curricular activities of each child, including baseball, speech therapy, etc., it being the intention of this paragraph that the children’s regular schedules be maintained so as to provide as great a degree [of] continuity as possible.

That language sets a lofty aspiration for the parties, and its spirit is certainly commendable. But it leaves some questions unanswered, such as: who does the scheduling; what are the limits on extra-curricular activities; who gets to determine what the children’s regular schedules are?

In time conflict arose between the parties over the fact that Janet scheduled baseball games, out-of-town tournaments, and other activities of the children during Wesley’s visitation time. Wesley petitioned the court for relief.

Wesley argued that Janet’s conduct violated his sacrosanct parental right to visitation without interference. Janet invoked the polestar best-interest-of-the-child principle. Immovable object meet irresistable force.

The chancellor fashioned a remedy he deemed to be in the best interest of the children, providing for Wesley to have make-up visitation if the children’s travel schedule interfered with his visitation. The chancellor relied heavily on the parties’ own language adopted in the agreed modification judgment. On appeal, the COA affirmed in Jaggers v. Magruder, handed down January 7, 2014, deferring to the chancellor’s considerable discretion in this area.

A few desultory thoughts:

  • I wonder whether more attention to detail in that modification judgment might have produced a different result, or even avoided this litigation entirely. As a lawyer, you have a considerable body of experience to draw on when you draft language to solve a client’s legal problem. You know from experience what situations give rise to certain kinds of problems. Bring that experience to bear when advising your client.
  • I think it’s a good idea to avoid aspirational language in agreed judgments and PSA’s. Language like “The parties agree that they will do all in their power to foster good feelings and to encourage love and devotion between parent and child” just seems to me to be a recipe for future litigation.
  • Address the practicalities in every order or PSA dealing with visitation. Who is responsible to pick up and return? What times? Who may accompany or take the place of the visiting parent? Who decides about scheduling extra-curricular activities during visitation time? What are the conditions for make-up visitation? Yes, I know that the parties have to bring some good faith to the table, but you can ward off some bad behavior based on your experience. And I know, too, that no one can anticipate every conceivable problem, but I am not suggesting that you address every conceivable problem — only the ones you shuold reasonably anticipate you can avoid in advance based on your experience.
  • The issue of the boundaries of the parents’ respective rights vis a vis visitation is one of the thorniest and most difficult to resolve for any chancellor. It’s as hard for a chancellor to resolve as it is for the lawyer to offer advice. That’s because of the competing equities that almost always have almost equal weight. I am glad that the appellate courts leave these issues largely in the discretion of the chancellor rather than conjuring up formulaic solutions that don’t fit the nuances in most situations.
  • This case is yet another in which the chancellor did not accept or implement the recommendation of the GAL. Keep in mind that the chancellor is never bound by the GAL’s recommendations.      

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§ One Response to Don’t Overlook the Practicalities when Dealing with Visitation

  • Patricia Smith says:

    As my primary legal practice is statewide as a GAL, I am particularly frustrated when parties design agreed orders that fail to take into consideration the best interests of the children and one or the other “caves” because of litigation financial pressure. If the GAL has done his/her job well and can document the need for certain measures, it would be so helpful if the Court insisted upon more than a minimal standard from its GALs and then took the recommendations seriously.

    thank you for your wonderful contributions to the legal profession.

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