Are You Looking to Prevent (Contact) or Protect?

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

Matthew Brickman:
But yeah, so, I mean, this is basically just, you know, a safety focused parenting plan, where again, in, in Sydney, so many times when we go to do this, I generally ask one question, which is, are you looking to prevent or protect? And usually I get, oh, protect, protect. And then I get, they’re not getting, and I’m not giving, okay. You not giving, it’s not yours to give. Which tells me you’re preventing. This is non protection. Cuz the child is entitled to frequent, continuing contact. It’s not yours to give. So let me ask the question again. You looking to protect or you looking to prevent to which I usually respond. If you’re looking to prevent, it’s not yours to prevent, but thank you for playing

Sydney Mitchell:
<laugh>.

Matthew Brickman:
If you’re looking to protect great, we have, we have tons of language, right? And this is everything that we’ve got for step up plans. How long do we build it out? What types of protections do we need?

Sydney Mitchell:
Right. So we’ve covered a lot about drugs and alcohol. What are some of the other safety concerns? One that comes to mind is, um, guns in the home. That is one that, that I wanted to ask about. If there’s some type of provision in the child safety portion regarding that also driving, I mean, there are so many other safety considerations outside of drugs and alcohol. So let’s talk through what some of those are that you have language for, um, and kind of go from there. So, okay.

Matthew Brickman:
So you

Sydney Mitchell:
Need to take us

Matthew Brickman:
Through yeah. So, so I’m, I, I’ve got a question back to you on driving in a moment. Um, but, um, guns. Yeah, here we go.

Sydney Mitchell:
That was the next one that just came to my mind. Although we’re

Matthew Brickman:
Well look, look, you and I we’re in America, we have a second amendment and there’s millions and millions of guns out there. So it’s most likely applicable. Right? Um, so, so we have language and what we do, we Florida statute and look, you and I have talked so many times it is important. Know the laws in your state, right? Like we, none, we could go back, know the laws in your state. If you don’t know the law’s consultant attorney, get online, Google family law, Google gun laws, Kentucky, like wherever you may be Google find it, right? Like the information’s out there. Just go find it. But in Florida it is found in statute 7, 9, 0 0.174. So Florida statute. So, so, so what we do is we simply have a sentence that says both parents shall use his or her best efforts to ensure that all weapons are kept out of the reach of the children at all times, both parties agree to adhere to Florida statute 7, 9, 0 0.174, as it applies to gun safety in both of their homes. So I’m sure Sydney you’re probably going well, what does Florida statute actually say?

Matthew Brickman:
So Florida statute says it actually talks about safe storage of firearms. So it says, um, in short it says that a firearm is to be kept securely at a locked box container or in a location which a reasonable person would believe to be secure and secure it with a trigger lock, except when carrying the gun on their person. So basically lock it up in a safe, put a trigger, lock on it. If you don’t have a safe, you have to do both unless you’re carrying it. If you’re carrying it, of course it doesn’t have to be in the safe and it doesn’t have a, have a trigger lock on it. And then it just talks about that. It’s a misdemeanor of the second degree. Um, if you failed to store or leave a firearm in the required manner, as it’s been outlined, um, and a minor gains access to the firearm without the lawful permission of the minor child’s parent or person having charge of the minor and possesses or exhibited without the supervision as required by law.

Matthew Brickman:
Um, so in a public place or in a rude, careless, angry, or threatening manner in violation of a different statute, um, this subsection does not apply if the minor obtains a firearm as a result of an unlawful entry by a person. So if a child gets the gun and then then uses it in self defense, then none of this actually a matter. So Sidney instead of creating our own rules, have a law. Yeah. I mean, we already have a law. So we simply just quote the statute when it comes to weapons. Um, you know, one of the other things that has come up recently is corporal punishment. Mm-hmm <affirmative> right. Like, can I, can, can I hit my kid? Well, you know, my ex spanks, my kid, I don’t believe in spanking like, okay, then what? Well go and refer to your statute, know the statute in your, in your state, in Florida, you, you can exercise corporal punishment now, corporal DCF and, and, and, and the other governing bodies of legal people have defined well, what’s corporal punishment.

Matthew Brickman:
It’s not pinching a child. It’s not pulling their hair. It’s not, it’s not twining their face. It’s not pulling their ear. It’s not smacking their face or the hitting them upside the head. It is an open hand SWAT to the butt. That’s considered corporal punishment. Anything else is child abuse. And so in Florida, you can exercise corporal punishment. You are not allowed to abuse a child. You know, there is no I’m getting a twig. And I remember growing up, my, my father used to use his belt. He used to use a twig these days, they would be considered, uh, uh, child abuse. I mean, if you leave any mark whatsoever, that is abuse. Um, I remember accidentally, you know, that would happen just, you know, and you know, the cool thing about my dad though. Um, even though he did use corporal punishment, and even though he did use a belt, he did never, ever, ever, ever did he ever hit us out of anger?

Matthew Brickman:
I mean, he, oh, I wish I, I, I could be like, I mean, like when I was, when I, when my kids were little, I was like, oh, I would call him like, how did you do this? Like, because I’d be so upset. And then I would spank my kids. Right? Oh, my dad was so cool to calm and collective my mom, not on the other hand. No. Uh, but my dad was like, like you, like, he would spank us and you could like, barely get a pulse out of him, which is the way it’s supposed to be. Right. He

Matthew Brickman:
Do, he was disciplining us and teaching us that what we did was wrong. He was not punishing us in hitting us out of anger. There is a major difference between punishment and discipline. And so, yeah, he would discipline us. And so, yeah, now I had this just the other day where, you know, the mom was upset because the dad was spanking the kid or smacking the kid and she wanted in the parenting plan, no corporal punishment at all. Now of course. Do you think that this dad was gonna be like, no, I should be able to hit my kid. Oh, absolutely not. He’s like, oh, I would never do that. Even though according to her, this has been a historic problem. Mm-hmm <affirmative> so we put it in there. No corporal punishment. Well that way, guess what, if there’s corporal punishment, that’s gonna be a violation of the agreement. Mm-hmm <affirmative> um, so something that, so, so you had mentioned driving, what do you mean by driving? Like a safe there,

Sydney Mitchell:
Any restrictions to who can drive the child when? Um, I just,

Matthew Brickman:
Okay. Hold that thought. Hold that thought. Hold that thought. Okay. Remember back in the actual parenting plan itself. Oh yeah.

Sydney Mitchell:
Isn’t that part of, they agreed to who can drive.

Matthew Brickman:
Yes. Yeah. Remember? Yes. So, so in the parenting plan itself, yes, that they got abide by DMV rules. So the child’s right. Only transported by a valid license or driver placed an appropriate car seats or booster seats and in the backseat of all cars or trucks. So legally allowed to be in the front seat. Mm-hmm <affirmative>, you’re not putting the kid on the car and letting them drive the car around the neighborhood. No, that’s a violation. Now, if you don’t have a parenting plan, you don’t have the enforcement and all you have is you telling the other parents, stop, stop, stop, stop, stop. Mm-hmm <affirmative> you don’t have a parenting plan. You don’t have a court order. You don’t have that enforcement. Um, then either parent can designate a third person if they’re not able to do it themselves. But here’s the deal. Before a parent utilizes a third party to provide transportation for the child, the parent requiring the assistance will provide in writing to the other parent, the complete legal name of the third party.

Matthew Brickman:
Who’s transporting the child. If a parent should utilize the same person more than one time providing the name prior to the first time they utilized, the person is sufficient. So Sid let’s say, for example, I’m gonna use, you know, uh, my mom, well, guess what I have to tell my ex that grandma is going to transport the children, pick them up from school and help me out. Mm-hmm <affirmative> I only have to notify her one time. I don’t have to tell her every single time I’m using my mom again, I’m using my mom again. I’m using my mom. No. As long as she knows. Okay. My mom is one of the authorized people allowed to transport the children. Mm-hmm <affirmative> so there’s that piece. Now here’s a safety focus piece because let’s go back to I’ve had it where say, for example, grandma has had a drinking issue and mom does not want grandma.

Matthew Brickman:
Dad’s mom driving the children. Now Sydney I’ve had it where? Yeah, grandma got, and she goes, oh, she got a DUI. Like grandma’s 50 grandma got a DUI when she was 21. Sure. Right. And they’re like, no, no, no. She got a DUI. I don’t want her. It’s like, it’s it not even in proximity, but let’s say, okay, she got a DUI three years ago. Let’s say she got a DUI six months ago. Mm-hmm <affirmative> now that’s a different story. Right? Mm-hmm <affirmative> so we’ve got language again. It all depends on the situation. Mm-hmm, <affirmative> where we’ve got the same language that we had about. So language for everyone that you prefer

Speaker 3:
Use for your

Matthew Brickman:
Situation. Yes. So still the license, the insurance, the booster seats. And by the way, if you’re using a third party, they have to adhere to the same things. License, insurance, booster, seats, car seats, back seat. This is anyone transporting the children. So if I’m gonna have my mom help out, my mom has to have a valid license. She’s gotta have insurance on her car. She’s gotta make sure that these kids are in their car seat or booster seat. She needs to make sure that they’re in the back seat of all cars or trucks still legally allowed to be in the front seat. Mm-hmm <affirmative> Sidney. The other day I had there. I’m gonna pause there. I, the other day. Oh, well he’s got a pickup. I don’t wanna be in transport in the pickup.

Matthew Brickman:
Okay. Are you aware that two seaters and I have a car? I was just telling my, my daughter today. I have a car that actually in a couple of weeks, I got 10 years ago. The car though is 20 years old. It’s two seater and 20 years ago. So we’re talking 2012. I mean, sorry. No, we’re talking 2002. Okay. I bought it in 2012, 2002. I have a 2002 Toyota. Right. And guess what? When you open up the glove box, you put the key in and turn off the airbag. When you put a car seat in the passenger seat, mm-hmm, <affirmative> just turn it off. Sometimes it’s automatic because it’s detected by weight. Right? Right. And so it’s off until you put something heavy enough and then it turns off mm-hmm <affirmative> and so look, you just have to abide and, and, and so look, this guy had a pickup and you know what?

Matthew Brickman:
Yeah. You could turn off the airbag when he’s transporting the child, not a problem. They follow the rules of your state, whatever DMV says. Right. But then we add here any third party who will be transporting the, the, the child shall not have been convicted. It’s important. It’s not an arrest. It’s not an allegation. It is a conviction. That’s different. Mm-hmm <affirmative> like, you could say, oh, well, they got arrested. Did they plea out? Okay, well then they sort of got away. Is it a conviction? If it’s a conviction of a DUI or DWI within, and I’ve, I’ve, I’ve had it six months, two years. Um, but usually it’s like within two years of the transportation taken place, right? That way, again, this is not a sword. This is a shield. We’re trying to create a safe environment. Cuz time sharing is going to happen in some way, shape or fashion, whether it’s supervised for time being, you know, even in, um, even in DCF, mediations and stuff, even a judge cannot not allow time sharing.

Matthew Brickman:
You know, we use a term that says you have to be given your own keys to your own jail cell. We give, you know, you, a person has to have the opportunity to make things right. And it’s up to them. What we do in mediation is we create, well, what are the parameters? How do we create the safe environment? It’s up to you. If you wanna let yourself out of the jail that you’ve put yourself at, you know, independency mediation. And that, that was the other mediation that I was certified to do with DCF in dependency mediation. There’s a case plan. Like, you know, as a mediator, you’re sitting there, you’ve got DCF representative. You’ve got DCFS attorney to make sure the representative’s doing what they’re supposed to do. Then you’ve got mom, usually a mom’s attorney. You’ve got dad, you’ve got dad’s attorney. And then you’ve got the mediator.

Matthew Brickman:
Like you’ve got a crew of people sitting around the table, crew of professionals, creating a safe environment where mom and, and, and everybody look, mom’s given a case plan, jump through the hoops. Dad’s given a case plan, jump through the hoops. Time sharing is taking place. Here’s how it’s going to work. And we would create a safe environment for that to happen. Um, some things Sydney. So driving, let’s say, for example, the parties wanna talk about, oh, well who’s buying a car. What age are the children allowed to drive or whatnot? Mm-hmm, <affirmative>, that’s completely up to mom and dad. The court’s not getting involved with that. That is up to the mom and the dad. If they can come to a meeting of the minds and wanna put into a parenting plan, great. If not, it’s not going in there getting the court doesn’t have the ability to, uh, deal with that. Sometimes I’ve seen, um, and it’s sort of vague language, but I’ve seen where the children will not engage in dangerous activities. Okay. Define dangerous activity. Yeah.

Sydney Mitchell:
<laugh>, that’s what I’m

Matthew Brickman:
Thinking. Right? Like I’m thinking a dangerous activity that I engage with on a daily basis is getting on the highway. <laugh> yeah. Like that’s a dangerous activity. Like, but you know, and so usually I’m like defined danger, you know, that goes to define, remember, we’re talking about substantially comply to the step up. Mm-hmm <affirmative> define substantial. Mm-hmm <affirmative> define danger. Like my idea of danger and your idea of danger could lead two, you know, going back to guns, really avoid danger, going back to guns. One parent may be completely anti-gun. The other one is nothing but second amendment wearing hat. And t-shirt every single day, right? One says, no, this is a tool. It’s a useful tool. The other one goes, no, it’s dangerous. Who’s defining danger. Right. You know? And so we, and so sometimes Sydney, you know, look, we’re in Florida. People put in boating language, um, for operating watercraft, life vest.

Matthew Brickman:
I mean, I’ve gotten that occasionally. Um, usually though when I’ve put in a parenting plan, look, mom and dad were married. They had boats, they traveled back and forth to Bahamas. Like they like their kids were born on boats and water. Right. Mm-hmm <affirmative> and both of them are like, look, boating is going to be a part of both of our lives. And yet we wanna create a safe, a safe place for the children. And we both wanna adhere to this. That’s very similar to the children are transported by a valid license insured driver or car seats through seats. Everybody is in agreement that we want, that this activity is happening. Let’s just create a safe, uh, a safe environment for it to continue. That’s what we’re doing with the parenting planning, right. Time sharing’s happening.

Sydney Mitchell:
How so? How would you advise a, a parent, you know, trying to discern whether something should be in writing in the parenting plan or not?

Matthew Brickman:
So first off you always, always, always must understand the laws of your state and you must understand the power of the court that will then give you a good basis to negotiate. So for example, we looked at Florida statute as it pertains to guns. Mm-hmm <affirmative> that means you cannot come in going no guns around the children at all, under any circumstance, cuz you’re not getting that in a court law. Mm-hmm <affirmative> right, right. What you’re gonna get from a judge is statute. Okay, you’re over 21. You can possess a gun. Fine. Now you are subject to the laws of this state, as it pertains to gun ownership, mm-hmm <affirmative> have realistic expectations. Don’t I mean, fine shoot for the stars. But come on, get your head outta the clouds and put your feet on the ground. This is reality. Time sharing is moving forward.

Matthew Brickman:
It’s about how do we create a protective situation, not preventative protective, and you’ve gotta have realistic expectations and you first start with, okay, is there a law? What is the law say pertaining to it? Mm-hmm <affirmative> and you know, let me just give you an example. I, and this language actually came from a very good attorney friend of mine that modified the language that I had because wanted to meet the statutory requirement for it. So going back here was as neither parents shall be under the influence of any substance, right past the point of being impaired of their normal faculties that’s language outta the statute that talks about DUI DWI under the influence, not being able to have, you know, um, you know, being impaired and not having the use of your normal faculties. Great. We’re referencing the statute. We’re not just creating words and stringing ’em together.

Matthew Brickman:
That don’t really make sense. And nobody can define like a judge would know like, okay, your breathalyzer was what, okay, that’s past the point of being able to keep your normal faculties under control. Mm-hmm <affirmative> fine. That’s a violation of the agreement. So, you know, and, and, and the other thing too is, is like you and I had discussed time timelines. They need to be realistic. Like, you know, how long is it gonna take you? Because here here’s the other thing, Sydney, a lot of this safety language, the details they’re not getting from a judge and a lot of time. Well, I can’t say a lot of times, most, no, um, many times the evidence that a parent may have in order to demand a safety focused plan, maybe it does need to go to a court of law. But usually what will happen is once the evidence is presented, a lot of times, then the judge will order them back to mediation with explicit instructions, go back to mediation, create a safety focused plan, do a six month step up.

Matthew Brickman:
It’s going to end in 50 50, create some drug testing language. Like they’re gonna send them back with explicit instructions. A judge is not gonna sit there and say, okay, mom, what are your thoughts? How do you wanna do supervision? Who who go give me three names of some super, they’re not gonna sit there and do that. They’re gonna send them back to mediation. Now I will tell you one though. I will tell you one. So, uh, one mediation I had many years ago and down in Boca, um, seven. Yeah, it was a seven hour mediation. Dad had been absent from the child’s life for 11 years and the child was, I think, 12 or 13. So we didn’t have that long left until the child emancipates at 18. Right. And dad came back into the child’s life and had all these demands and I’m not doing reunification therapy and, and no, I’m not gonna do it like this and I’m not gonna do it like that.

Matthew Brickman:
And so after seven hours of negotiating, how this could all work, finally ended up with a plan. Finally got a plan. And at the last minute dad goes, nevermind. I’m gonna let a judge figure it out. And we’re going. And everyone is like, after it’s. I mean, it was like, I think it was like six, seven o’clock at night. <laugh> I mean, seven hours of this. And finally, I mean, we had, we had, I think it was, I wanna say it was like a 21 and most parenting plans are about 14 pages. We have about a 21 page parenting plan with all the steps, the therapies, the drugs, the alcohol, the corporal. I mean, we had everything in it. Right. And he’s like, Nope, nevermind. I’m going to court. So he went to court, it was a rarity I’ve only ever seen this one time, but they went to court and oh wait, wait, wait, wait, wait. I forgot. I, I forgot a very, very interesting piece of this.

Matthew Brickman:
One of the reasons why dad said no was know was because his attorney was arguing the particular language, like he was arguing. Remember back in the day where bill Clinton was like, well, it depends on what the word is. <laugh> like, remember that argument back when he was, when, when he was under oath. Well, yeah, I is. So this particular attorney, good attorney, um, but was nitpicking after seven hours nitpicking the particular language and the other attorney was just over it. After seven hours, we got it. Yeah. I’d be over it. And then, and then we’re ready to sign. And then he is nitpicking the language to the point where then his client is like, yeah, yeah, no, I’m not signing it. So really what threw this whole thing off the father’s attorney, it picking the, the language. So they, so they end up in trial months go by.

Matthew Brickman:
Cuz it took months for him to get, yeah. Meanwhile he’s got nothing. He has not been adjudicated. The father he’s got nothing. He could have been by the time they went to trial, he could have been through the entire step up plan been done. Right. Um, but no, no, no, no. His, his attorney was nitpicking. He was then like, yeah, I’m not doing it. Go in front of the judge months. Go by. And I remember I was sitting at the pool. It was, uh, I, I was off one day I was sitting at the pool and I got an email from the, uh, mom’s attorney and said, and it simply said, thought you’d be interested in some, some light reading. I was like, I wonder what this is. And look you, you I’ve I’ve I, I do hundreds of cases a year. Mm-hmm <affirmative> I do not look, I don’t even remember the, I don’t even remember, uh, the three or four I did last week.

Matthew Brickman:
Right, right. And this was months and months and months ago. So I open up the email and I’m like, who is this? Like, so what do I, so I’ve, I’ve got all my documents, everything sitting on the cloud. So I go, so I go to my cloud, I’m like, and I’m like, oh yeah, I’m looking, oh yeah. I remember this mediation. Cause I’m looking at the draft that I did that they didn’t sign. I’m like, oh yeah. So I go back and I start reading and I’m, I’m like on page 11. And I’m like, how long is this thing? Mm-hmm <affirmative> Sydney. It was over 40 pages long. The judge actually did not send him back to mediation with instruction. The judge actually made their own decision. Remember when I told you, look, we’re gonna create something. It’s not gonna be 10 feet high in these little hoops for you to jump through or whatnot, we’re gonna create something that’s achievable. Right?

Matthew Brickman:
Apparently they had a trial and this guy was, did not come off as a good witness at all. Totally the judge off. And for our listeners, it is never a good idea to let a family court judge decide your life. Nobody’s ever gonna be a hundred, a hundred percent completely happy because you don’t get a jury of your peers. You have one individual who’s gonna make judge jury execution or make the entire decision. This guy was like, no, I’m not agreeing. I’ll let a judge figure it out. This judge ended up not liking him at all in any way, shape or form. And the judge re and the judge had the power, they’ve got the power to do. So the judge releases in it is scathing. I mean, scathing, he created almost an impossibility. I mean almost an impossibility. Mm-hmm <affirmative> I, I had never seen any, this guy in mediation was, I mean, this was like, he stumbled onto Fort Knox, a room full of gold bricks and then said, I was looking for silver.

Matthew Brickman:
I don’t, I don’t, I don’t want gold. It’s like what? Right. You know, sold to build a goods from his attorney and it turned out, no, no, no. You should have taken that. That was a gift. It was. So, I mean it, that particular judge ruled to punish, he was so off, um, that he ruled to punish. I’ve never seen anything like it’s, uh, prior I’ve never seen anything like it, since most judges will actually send back to mediation with instructions, but that particular one, it was scathing. And as I kept, I mean, I’m reading this after the fact and I’ve got just a pit in my stomach going, what did he say to the judge to get this type of wrath? It was bad. Wow. So always, it’s always helpful. Understand the laws, understand the statute, know who your judge is that can help. Like, you know, once, once your case gets assigned, know who your judge is, that’ll help you. Um, and, and, and look, my job as a mediators to give information just like all of this, I give information. I can’t tell people, well, this is what you need to do. Absolutely. You need to have this and definitely get this. I can say, look, if, if you have an alcohol problem, then here is some good language. Take it or leave it. If you have drug problem, here is some good language. Um,

Sydney Mitchell:
I was gonna say, are there any other safety considerations that you wanna, that you have language for that you wanna read?

Matthew Brickman:
You know, I mean, there’s, there’s some basic stuff here and there, Sydney, like, you know, they’re gonna not smoke around the kids, which there’s laws for mm-hmm <affirmative> um, if you’re in childproof, you’re home, you’re gonna keep chemicals out of the reach of the child. Mm-hmm <affirmative> um, you know, um, something as simple as you are not going to engage in any conversation regarding, uh, parenting issues or court or mediation or any legal issues with the children or in front of the children or around the children, that’s a safety sort of thing, because you know, you, you know, you gotta keep them out of it. But I mean, those, those are most of the things. I mean, again, usually safety is usually physical abuse, sometimes verbal drugs, alcohol that rises to the level of, okay, we’re gonna need a facility, we’re gonna need an individual.

Matthew Brickman:
We’re gonna need to build this thing out in steps, but it’s gotta be achievable. You know, again, it it’s meant to be, um, obtainable it’s meant to be a shield, not a sword mm-hmm <affirmative>. And so, you know, I guess, I guess my, my final words on this would be know the laws in your state have realistic expectations, right? It’s a shield, not a sword time sharing is moving forward. It’s just a matter of, do you want to retain control of your life and your child and your situation, or do you wanna let a judge figure it out either way? It’s a choice?

Sydney Mitchell:
Well, Matthew, thank you so much for all of these thoughts and insights. This is extremely helpful. And I knew that this would be a topic that I would have a lot of questions on. So thanks for bearing with my questions. Um, what’s next for us in the podcast? Is there anything else on the child safety part of the parenting plan? Is there anything else in the parenting plan as a whole that we still need to cover?

Matthew Brickman:
So we’ve got nothing on the parenting as a whole, unless laws change. Um, but even with that, you know, we’ve talked about in previous episodes, what could potentially change mm-hmm <affirmative>, uh, you know, the core part of the parenting plan will remain the same. And, uh, as far as what’s coming up in future episodes, you’re gonna have to listen.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.