Custody issues, legal fees, bad faith negotiation, etc.

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Latest post Thu, Mar 24 2016 7:36 AM by karen2222. 10 replies.
  • Sun, Mar 6 2016 4:21 PM

    • Fark999
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    • NJ
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    Custody issues, legal fees, bad faith negotiation, etc.

    Not sure if this is the correct forum to post in but here goes:

    I have primary custody of 2 children from my first marriage.  My oldest child has a long history of mental health issues and with the onset of puberty took a sudden turn toward rage and threats of violence.  My ex-husband who lives out of state and is barely involved in the kids lives agreed to take primary custody of our son late last year.  We discussed having him finish the school year and having him move down there this coming summer.  Given that we would have to modify our existing support and custody orders he insisted I hire an attorney to draw up a draft agreement which he would then review with his attorney and sign off on. 

    I then proceeded to contact my attorney and have him draw up the motion to give custody to my ex and relieve him of all child support obligations.  I sent a copy of the draft to my ex mid december and awaited his response.  A coupld of weeks went by and I contacted him to see what the problem was, he stated that there were a couple of items he wanted to change but would be getting back to me shortly.  Following this the kids were to spend a week with him during their christmas break.  Approximately 3 hours into their visit with him I get a frantic hysterical call from him telling me he cant handle our son and wants to back out of the deal.  He followed this up with "I wasn't really going to go through with it anyway".

    Unfortunately for me, I am now out the $1500 retainer I sent to my attorney.  I have text messages and emails from him showing every detail and I need to know if his actions constitute a "bad faith negotiation".  Please note that it was only at his urging that I retained an attorney.  Thanks for your help.

  • Sun, Mar 6 2016 5:23 PM In reply to

    Re: Custody issues, legal fees, bad faith negotiation, etc.

    Fark999:
    I have text messages and emails from him showing every detail and I need to know if his actions constitute a "bad faith negotiation".

    My opinion:  no.  You cannot force him to take custody and given that he is at a great distance and not involved with this kid he had NO way of knowing how serious the situation was or whether or not he could handle it.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Mon, Mar 7 2016 4:51 AM In reply to

    • Drew
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    Re: Custody issues, legal fees, bad faith negotiation, etc.

    Bad faith is in eye of beholder and even if you could prove the point It may not be actionable in any practical sense ....except as a warning about future negioations.

    If this is likely a long term situation, you may want to address that. NJ provides that both parents provide for post HS education and on going support , more important your fact pattern may allow for ongoing support until such time as disability is abated and individual is self supporting ....and if in your unfortunate absence , as a young man he might rely on some need based public services , it's important to think thru NOT transferring any countable assets to him.... Tough calls . 



  • Mon, Mar 7 2016 10:09 AM In reply to

    Re: Custody issues, legal fees, bad faith negotiation, etc.

    It's hard to claim this bad faith. Obviously your child is difficult. Dad tried and he cannot do it although giving up after only a couple hours is unusual.

    Your child needs some mental help. Is he getting it? Being bounced around is not going to help. Are you able to perhaps get him into a facility or under some medical treatment? If you guys have money for an attorney I would hope you are able to provide this child some help. What options have you looked into? He needs anger management and some counselling. I wish you lots of luck.

  • Mon, Mar 7 2016 3:42 PM In reply to

    Re: Custody issues, legal fees, bad faith negotiation, etc.

    The "bad faith negotiation" label may well be apt, but so what?

    Serious question.

  • Tue, Mar 15 2016 10:53 PM In reply to

    • Fark999
      Consumer
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    • Joined on Mon, Nov 23 2009
    • NJ
    • Posts 13

    Re: Custody issues, legal fees, bad faith negotiation, etc.

    At this point my only question is wether I have grounds to recoup my legal fees.  My understanding of "bad faith negotiations" is that if someone enters into a verbal or written agreement with you and walks away from the deal they are liable for any expenses you incurred.  I have text messages and emails documenting his desire to take custody and his insistence of retaining attorneys for formalize the agreement.  If he was just jerking me around do I not have good legal standing to recoup my legal fees?

  • Wed, Mar 16 2016 9:08 AM In reply to

    Re: Custody issues, legal fees, bad faith negotiation, etc.

    Fark999:
    My understanding of "bad faith negotiations" is that if someone enters into a verbal or written agreement with you and walks away from the deal they are liable for any expenses you incurred.

    I'm not sure where you gained this understanding, but it certainly isn't true.  It happens all the time that persons and entities make verbal agreements and then back out during the process of memorializing the agreement in writing.

     

    Fark999:
    If he was just jerking me around do I not have good legal standing to recoup my legal fees?

    Even if your understanding regarding "bad faith negotiations" were correct, how could you prove this.  My reading of your original post is that your ex had little, if any, knowledge regarding your son's behavioral issues.  Therefore, when he initially agreed to the custody change, he was ill-informed, and he changed his mind after spending time with the kid (the "frantic hysterical call").  I wouldn't put much stock in his comment that he "wasn't really going to go through with it anyway" (which he'd probably deny saying anyway).

  • Wed, Mar 16 2016 11:19 AM In reply to

    Re: Custody issues, legal fees, bad faith negotiation, etc.

    Fark999:
    If he was just jerking me around do I not have good legal standing to recoup my legal fees?

    I'm not a lawyer and don't know the answer to that question, but your fact pattern (where a father who "lives out of state and is barely involved in the kids lives" changes his mind after a visit from the child) suggests stupidity rather than bad faith on the part of your ex.

    Fark999:
    My understanding of "bad faith negotiations" is that if someone enters into a verbal or written agreement with you and walks away from the deal they are liable for any expenses you incurred.

    You seem to be describing breach of contract, which only applies when the negotiations have been completed and both parties communicate their belief that they have a deal.  It doesn't sound like you had arrived at that point.  Contracts CAN be verbal, but if everyone is working on the final wording of a written document, that makes it pretty clear no contract exists yet.

  • Fri, Mar 18 2016 12:27 PM In reply to

    • speee1dy
      Consumer
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    Re: Custody issues, legal fees, bad faith negotiation, etc.

    it also makes one wonder how much of the truth you supplied your ex in regards to his son 

  • Wed, Mar 23 2016 7:18 PM In reply to

    • Fark999
      Consumer
    • Not Ranked
    • Joined on Mon, Nov 23 2009
    • NJ
    • Posts 13

    Re: Custody issues, legal fees, bad faith negotiation, etc.

    Just to revisit this issue, my ex just agreed to pay half of my legal expenses in order to make amends.  For the record, he knows every detail of the struggles his son has faced and continues to face.  For a time they had opened up communication via phone, email and facebook and it was looking like him moving in with his father was going to be the best thing since he no longer had to compete with siblings and have more alone time.  Turns out that he didn't care for how small his fathers apartment was and how small his new bedroom would be and decided to throw a borderline psychotic tantrum in order to erase any chance of the move down there working out. It took a few months for him to confess to this but he eventually came clean.

    And yet I persevere..

  • Thu, Mar 24 2016 7:36 AM In reply to

    Re: Custody issues, legal fees, bad faith negotiation, etc.

    Ha, ha, pretty funny (to those of us who don't have to deal with it of course)!  Thanks for the update, and best of luck!

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