Visitation per Separation agreement


#1

remember, this is not about your feelings about your ex or his about you. This is about what benefits the child. It benefits the child in most circumstances to spend time with both parents.


#2

Well, a separation agreement is just that…an agreement between two parties. Although it is a legal contract between the two of you, it is not mandated by the courts or the local authorities. If he wants to change it, he has to either get you to agree to something else and amend it, or take you to court for a custody trial. Also, if you are in NC, custody mediation is now a must, so you two will eventually be forced to work something out, so why not just try now. If you two cannot agree on what is best, then one of you will need to file for custody of the child so that your case will go to mediation and/or a trial court.


#3

Dear Concerned Parent:

Greetings. If your separation agreement was signed by both of you and notarized, it is legally binding and you can sue to enforce it. Good luck.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#4

The court is not bound by provisions of a separation agreement pertaining to child custody and child support. It does whatever it wants to do with regard to these matters.

As for custody, if the agreement says ‘x’ and the court does ‘y’, ‘x’ becomes moot and is no longer of any practical value. Furthermore, in this hypothetical case, ‘x’ cannot be enforced by any mechanism of which I am aware.

As for child support, the court is supposed to give presumptive weight to the amount of child support specified in the agreement. See Pataky v. Pataky (2003, NC COA), aoc.state.nc.us/www/public/c … 0616-1.htm.

Consider the following scenario. Suppose agreement says the kids live mostly with mom, and dad pays child support to mom. Suppose also that mom and dad earn approximately the same. Sometime later dad sues, and the court eventually awards dad primary custody and orders mom to pay child support to dad. The court order says mom pays child support, but the separation agreement says dad pays child support! In a case like this, the separation agreement is “trumped” by the court order.


#5

If no one files a claim for child custody, then the separation agreement is completely enforced and the court cannot change the agreement. Thank you.

Janet L. Fritts
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

301 McCullough Drive Suite 510
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#6

I had previously sent a topic out wanting legal advice, not really emoitional advice. We have a very fair separation agreement where my ex husband is permitted very fair and liberal visitation with our 5 year old. He is threatening to change things and saying that our separation agreement has little legal validity. I would like to know if that is true. I do not agree in swapping a child around several times per week. I think that it is ultimately destructive to his education. I think my ex is jealous of the new man in my life and his son’s life. I have had to deal with the fact that he has had a long term affair with his assistant and i do not think this is fair. I want to ensure I will have a good case with the sep. agreement that he did agree too.

Concerned Parent