Custody agreements/changes and safety during COVID

Me ex-wife and I have a separation agreement (not filed with the courts, just a private agreement, signed and notorized) and we have agreed to make alterations over the years. Right now we are at 2 weeks on/off. The reason for this is due to my ex-wife visiting her boyfriend while my daughter is with me… then she takes our daughter for two weeks just to provide the recommend time for possible COVID infection to show up. Her boyfriend has children from another marriage and it’s unknown how careful their mother is when with the kids.

My wife is higher risk due to a pre-existing condition, so we are trying to be safe. Up until this point we’ve agreed on exposure. We asked that my ex-wife not take our daughter over the the boyfriend’s house for sleepover with his kids since all the guidance states that spending time indoors without masks with people you don’t normally live with is a high risk activity. She is now saying that she’s going to take our daughter for sleepovers when possible when she has our daughter and ignore the 2 week buffer before she comes back to our house.

I’m working to try and come to an agreement with her, but wondering what some of my legal options are. We have a separation agreement that states that we will attempt to reach an agreement about disputes and if we can’t we will then seek mediation to settle any disputes.

I can try to sue for breach of contract in civil court, but I doubt that would help. Any advice is appreciated.

Filing a breach of contract lawsuit against your ex-wife is an option if she has violated the separation agreement. However, this will not necessarily resolve your problem.

Since you have a mandatory mediation clause in your separation agreement, then you would be required to attend a mediation session if a disagreement arises and you can’t mutually agree on the solution.

Otherwise, your only other option would be to file a custody lawsuit against her, however, the 50/50 schedule that you have is not likely to change based on the information you’ve provided here, and a judge will likely not tell a parent that he/she cannot take a child to a sleepover without very compelling medical evidence or other evidence advising against it.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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