When can a mediated settlement agreement be modified for child custody?

In many divorce actions, husband and wife will enter into a voluntary settlement agreement that gives specific details regarding child custody and visitation rights. Often the same agreement will require that any dispute with the settlement agreement must be voluntarily mediated before either party can go to court to have any issue resolved.

It is a misbelief that such voluntary mediation clause must be followed with respect to child custody and visitation rights. Fortunately, North Carolina, like most states follows the “best interest of the child” standard when ruling on child custody issues. North Carolina has also clearly established that child custody issues may be immediately brought before the court. This can be extremely important when one spouse has failed to satisfy the requirements stated in the settlement agreement for things such as child support.

So the mediation technicality is unenforceable, but the specific rules of court, including any local rules of court, must be followed before a court will exercise jurisdiction over child custody issues. These “technicalities” may not make sense to someone in the middle of a custody battle; therefore, having an attorney lead you through this process is of the utmost importance.

In the example of a parent who does not pay child support, they may also be behind on spousal support. This can and does create a financial disaster for the custodial parent. An attorney will want to be paid for their time to; however, the parent seeking a modification in custody may have difficulty with payment of services which would then serve as a barrier to the whole process. Fortunately, many settlement agreements and many judges will award attorney fees for the attorney working on behalf of said parent because this is also in the best interest of the child.

Do not let the cost of bringing a custody action ever be an impediment to hiring an attorney to help with the situation. Reach out to a good family law attorney and be honest and upfront about the lack of financial resources when it is an issue. You will be surprised how many attorneys will be willing to work something out for you, especially when children are involved.

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