Modifying custody schedule

My separation agreement (signed 2/2009) detailed both a 70/30 split (in my favor because at the time we signed it, ex didn’t have the ability to do 50/50) AND a 50/50 schedule to be implemented once ex was able to do it. Both included a weekly schedule.

Ex and I began using the 50/50 schedule in 9/2009. The schedule itself was very hard on children, and so we modified it unofficially, on our own, to be a different weekly schedule than what is in the agreement. But we never documented this with a modification to the agreement.

In 3/2010, the separation agreement was rolled into the decree of absolute divorce granted to me by summary judgement.

Because ex an I have been by turns agreeable and antagonistic, I would like to have the schedule we are actually using be entered as a modification to the document. (Just in case he gets mean again- he has in the past) I told him I would file the modification- but he now refuses to look at paperwork. He said he would not go to mediation with me, either.

  1. If he refuses to go to mediation, will the modification go before a judge? Or will he be ordered to attend mediation?

  2. Will the fact that we have already been deviating from the documented schedule work against us in any way?

  3. Is there a way for me to request he HAVE to attend mediation, or sit down to discuss this in some way?

Thank you.

Many counties have mandatory mediation, and he will be sanctioned and fined by the court if he does not attend.

No, your deviation from the written schedule will not hurt your case.