Request mediation (move to compel it, if need be)!
Our previous posts ensuring you enjoy and enforce your holiday parent time dealt with giving your ex as much advanced notice as you possibly can, and documenting your notice.
We discussed the fact that you want to give clear and concise written notice. To do that, you need to cite to the specific provisions of your court order regarding the holiday parent time periods you intend to exercise. You need to ensure you have proof that your ex was sent this notice, which is why we advised you to send not only a written letter by certified mail, but an email and even a text message if you feel appropriate. If possible, you want documentation proving your ex received notice as well. This is where a certified mailing certificate or an email read receipt is helpful.
We also discussed the fact that giving notice a single time may not be enough, and that you will want to give early notice, followed by follow-up notice a week or 10 days later if you are ignored the first time around.
If, despite having given multiple notices (and don’t give too many, or you’ll be accused of “harassing” your ex) your ex still ignores your efforts to coordinate your holiday parent time, this is what Utah requires you do next:
Ah, mediation. Unless you are terribly contemplative, you have probably been taught and believe that mediation is oh so much better than going to court. Mediation is faster than court, mediation is cheaper than court, mediation is far more amicable than court, mediation places control of the issues in your hands and not the hands of the court. Lies.
There was a time when mediation often truly was a better alternative to litigation, but that all changed years ago when mediation was made mandatory. Now mediation is just one more conflict resolution system to be gamed. There are many reasons why mandatory mediation is a paradoxical hypocritical oxymoronic thing, but we won’t cover that in this blog posting.
What’s important to understand about mediation when it comes to holiday parent time (or any kind of parent time, for that matter) in Utah is that most Utah court will require any parent time dispute to be submitted to mediation before it can be addressed by the court. If you are catching flak from your ex about your holiday parent time in mid-October, you don’t have any time to lose in jumping through the mediation hoop.
So if, despite clear, plain, and—in most cases—repeated notice to your ex regarding your efforts to schedule and coordinate holiday parent time so that there will be no disappointments or conflicts, your ex either ignores your efforts or expressly rebuffs them, make sure you at least propose that you and your ex go to mediation to resolve the dispute before you take the matter to court.
This does not mean that you must hesitate to file a motion with the court to enforce your parent time. In fact, I usually advise people to file the motion to enforce parent time for or at the same time that they propose mediation to their exes. That way you don’t waste any time trying to coordinate and go to mediation while you’re motion is working its way to the judge.
As with your efforts to give notice of parent time, make sure your request for mediation is clear and documented. If your ex refuses to go to mediation, you will need to present proof to the court of your efforts to try mediation AND of your ex’s refusal to mediate before the court will waive a requirement to mediate.
If your ex will not agree to schedule and go to mediation timely, make sure you document that and then take the matter immediately to the court asking for a court order and citing as the basis for your request your ex’s refusal to meet in mediation despite your efforts to schedule and hold mediation.
If your case is anywhere but in the third judicial district Utah, you won’t need to read the rest of this article, but you may wish to read it anyway because courts in other counties in district in the state of Utah will utilize these guidelines themselves.
SPECIAL NOTE FOR PARENTS WHOSE CASE IS IN THE THIRD JUDICIAL DISTRICT (SALT LAKE COUNTY):
If your parent-time case is in the Third Judicial District of Utah (Salt Lake County), there is a special parent-time mediation statute just for you, you lucky dog. Utah Code § 30-3-38 is entitled the “Expedited Parent-time Enforcement Program.” You can read the entire statute by clicking on this link here. To summarize this law, here is what it requires of parents engaged in a parent time dispute:
- If a parent files a motion in the third district court alleging that court-ordered parent-time rights are being violated, the clerk of the court, after assigning the case to a judge, shall refer the case to the administrator of the (and I’m not kidding, this is really its name) Expedited Parent-time Enforcement Program for assignment to a mediator, unless a parent is incarcerated or otherwise unavailable.
- If you thought you could avoid the mediation requirement of the third district because you live out of state, the Utah legislature is way ahead of you: “unless the court rules otherwise, a parent residing outside of the state is not unavailable.” (Utah Code § 30-3-38(3)(a))
- The director of the program for the courts, the court, or the mediator may excuse either party from the requirement to mediate for good cause, but the code section doesn’t define what good cause is, and if you tried to get the mediation requirement waived for good cause it would take you longer to do that than simply go to mediation and not reach agreement and then go straight to court with your motion to enforce parent time. Yes, the statute and the way it is administered was designed to thwart efforts to get the mediation requirement waived, so just bite the bullet and go to mediation. Thankfully, there’s nothing that requires you to go through parent-time enforcement mediation for hours on fruitless end.
- § 30-3-38(3)(b) requires that upon receipt of a case, the mediator must meet with the parents to address parent-time issues within 15 days of the motion being filed, but don’t be surprised if your case is not just scheduled for mediation within 15 days. Do your best to get it scheduled to occur within 15 days, and if it’s not scheduled within 15 days, I would recommend trying to get the expedited parent time enforcement program coordinator to waive your mediation on the basis that the statute was not complied with on the part of the program.
- § 30-3-38(3)(b) also allows the mediator to “determine whether a referral to a service provider under Subsection (3)(c) is warranted.” Oh boy, I bet you can’t wait to find out what Subsection (3)(c) is all about. Here it is:
o While a case is in mediation, a mediator may refer the parents to a service provider designated by the Department of Human Services for services to facilitate parent-time if:
- the services may be of significant benefit to the parents; or
- a mediated agreement between the parents is unlikely; and
- the services may facilitate an agreement.
Unless you clearly have an ex who is so obviously crazy evil or evil crazy that it cannot be denied and you cannot be implicated in your ex’s craziness and/or evilness, you don’t want this to happen. Being referred to the Department of human services chills my blood and it should chill yours too. Ronald Reagan famously quipped, “The nine most terrifying words in the English language are ‘I’m from the government, and I’m here to help.’” Fortunately, I have never had this happen in a case of mine, and with rare, rare exception I pray it never happens in your case either. And did I mention that if you are referred to “services to facilitate parent time,” you can and likely will be ordered by the court to pay for them.
- At any time during mediation, a mediator shall terminate mediation and transfer the case to the administrator of the program for referral to the judge or court commissioner to whom the case is assigned if:
o a written agreement between the parents is reached; or
o the parents are unable to reach an agreement through mediation and
- the parents have received services to facilitate parent-time;
- both parents object to receiving services to facilitate parent-time; or
- the parents are unlikely to benefit from receiving services to facilitate parent-time.
- Upon receiving a case from the administrator of the program, a judge or court commissioner may:
o review the agreement of the parents and, if acceptable, sign it as an order;
o order the parents to receive services to facilitate parent-time;
o proceed with the case; or
o “take other appropriate action.” What “other appropriate action” is is not defined in § 30-3-38.
- Unless the court orders otherwise, the cost of mediation is divided equally between the parents. The judge may order a parent to pay more than half if the court finds that that parent
o failed to participate in good faith in mediation or services to facilitate parent-time;
o made an unfounded assertion or claim of physical or sexual abuse of a child.