Q. When I got divorced five years ago, my ex and I mediated our divorce. The mediator wrote an agreement, and we brought it to court for approval. The judge did not approve it because she said some of the terms were not acceptable. We went outside and called the mediator for help. He said we could make the change the judge wanted but because we had agreed otherwise, we should write up and sign a separate paper between us and not tell the judge that we were keeping our old agreement.  That is what we did.

One part the judge did not approve was our agreement not to move outside of Winchester until the children graduate high school so that we would never disrupt the equal parenting plan. We had to cross that part of the agreement out to get the judge to approve it.  But, we still agreed we would neither move nor change the parenting plan.

My ex got remarried last year and his wife took a new job, so they are moving to Hingham.  He is insisting the parenting agreement can’t change because our side agreement said it would not change, but it also says he will stay in Winchester.  Can he prevent me from asking for a modification and if so can I hold him in contempt?

A. First and foremost, you cannot expect to uphold a side deal you struck in the hallway on bad advice from a mediator when the judge made clear your agreement was not acceptable.

In your particular case, you cannot agree that a parenting plan will never be modified.  Child-related provisions in divorce agreements are always modifiable upon a material change in circumstances.  Further, you also cannot condition access to children on a person agreeing to live in a particular place, doing so violates a person’s freedom of movement and ability to live where they choose.

So, to answer your question, your ex is NOT in contempt because he has not violated the agreement approved by the court.  Your side deal has no bearing in the law.

At the same time, your ex cannot prevent you from filing a complaint to modify the parenting plan so that the children are not traveling great distances to school from his new home on the other side of Boston in rush hour traffic.

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