In cases involving child custody or visitation, courts almost always require parties to engage in mediation with a third party mediator. The only exceptions to this are when “good cause” exists to forego mediation, such as a history of domestic violence, certain criminal convictions, substance abuse, or child abuse or neglect.
Mediation is generally a good option for resolving a child custody or visitation dispute. In fact, the stated purpose of mediation is to:
- “reduce any acrimony that exists” between the parents;
- facilitate custody and visitation agreements that are in the child’s best interest;
- “provide the parties with informed choices” and to allow the parties to make decisions for themselves instead of relying on the court;
- “provide a structured, confidential, nonadversarial setting that will facilitate the cooperative resolution of custody and visitation disputes and minimize the stress and anxiety to which the parties, and especially the child, are subjected”; and
- reduce having to bring custody and visitation disputes to trial.
While most child custody and visitation proceedings are resolved at mediation, not everyone walks away happy. In fact, after sleeping on it, some people have second thoughts entirely about their agreement and want to rescind it. Unfortunately, there are few options when it comes to invalidating a mediated agreement.
Specifically, North Carolina’s child custody statutes state that:
“Any agreement reached by the parties as a result of the mediation shall be reduced to writing, signed by each party, and submitted to the court as soon as practicable. Unless the court finds good reason not to, it shall incorporate the agreement in a court order and it shall become enforceable as a court order.”
This essentially leaves two avenues of challenging a mediation agreement. The first is that the mediated agreement does not comport with the statutory requirements of being in writing and signed by each party. This almost never happens as mediators will not submit a mediated agreement to a court that is unsigned.
The second avenue to challenge an agreement is to demonstrate that there is “good reason” for the court to decline incorporating the agreement into a court order. Unfortunately, the statute does not define what constitutes a “good reason”, although contracts are generally deemed invalid only if a party can prove that it was obtained by “fraud, duress, or coercion.” In short, buyer’s remorse is not enough to overturn a mediated settlement agreement.
Just know that it is incredibly rare that a court will overturn a mediated agreement regarding child custody. The courts generally trust their court appointed mediators and the integrity of the mediation process. It is therefore incredibly important to attend mediation with an attorney, to negotiate in good faith, and to only sign your name to paper if you are absolutely willing and able to abide by your agreement.
Let New Direction Family Law Assist You
New Direction Family Law is a family law firm that represents and advises clients regarding child custody issues. We respect our clients and strive to provide compassionate, helpful legal guidance. You need an attorney who will provide you with all of the information you need to make well-informed decisions about your future and your children. We serve Wake, Johnston, Durham and surrounding counties. Call New Direction Family Law at (919) 719-3470 to schedule an appointment or visit us online at our website.
Sarah J. Hink
New Direction Family Law