Basics of a Custody Agreement
Before we can understand how to create a custody agreement without going through the courts there are a few things we need to go over so that we have a clear understanding of what a possession and access order actually is.
A custody agreement is a type of document/court order that details the time when each parent has possession of their child. This is NOT a custody order. This does not determine who gets custody of the child or who can make decisions for the child. This is strictly when that child has possession of them.
As far as when writing the possession schedule there are a few things to consider: when does either parent work? What do the parents prefer? What activities does the child participate in? Is there any geographical distance between parents that must be addressed? During Summer and Spring Break, how will that effect the child’s relationship with their other parent? How old is the child? Are they communicative with their parents?
For example: A child is 6 years old and lives 30 minutes away from every family member . The child is not communicative with the parents. Neither parent works on the weekend so weekends would be perfect to share possession of the child. However, during the summer or spring break, where does that child go? Does the child need time to take a vacation or interact with a relative?
For example: If you and the child’s other parent split weekends but have weekdays off work but are still communicative with the child then having possession of the child on Wednesday night may be ideal.
Once you have determined what time you want with the child you can sit down with your co-parent and go over the schedule of when you want to have possession of the child. You both go over what works best for you and your child to come up with a schedule that is agreeable to you both.
Advantages of Settling Custody Without Going to Court
One of the most significant advantages of settling a child custody case out of court is the cost savings. From attorney’s fees to filing fees, a court proceeding can become expensive quickly. In some cases, court-ordered custody evaluations and psychological examinations can cost thousands of dollars. Additionally, contesting custody in court can result in additional costs such as lost wages due to missed work, childcare expenses while in court and other costly expenses resulting from your case. When you settle your custody out of court, you avoid the substantial expense of having witnesses testify and creating a long record of the contested proceedings. Privacy is another factor that may benefit parents who settle custody out of court. A trial is open to the public, including your family members and coworkers. Going to court also puts your child on display for the world to see. Instead of your child being tested, interviewed or examined before a judge, he or she can continue living their life without the pressure of a court proceeding. When you settle your case out of court, you can address your problems without involving the judge, lawyers, and other third parties.
Getting Started: Taking a Step Towards an Out-of-Court Custody Agreement
Once you’ve begun to seriously discuss the issue with your spouse or ex-spouse, determine whether you should enlist outside help. Many communities have court temporary order conciliation conferences, where parties are referred by the judge to engage in mediation in hopes of reaching an out-of-court Agreement. However, families can also privately pursue outside help directly.
Parents appearing at a voluntary mediation can often present two Gifts: a mediator working toward a negotiated agreement and parents willing to work together on a relatively short-term project. Unlike a litigation process, many parents are nervous about a private mediation. They worry that the mediator will "take sides" and forget about what’s best for the kids. Here, both parties are given a "break" because they’re talking about a family-wide decision – it is not solely a "mom vs. dad" event. Kids’ interests are already a "shared" concern.
If you, as a parent, understand that these gifts are being presented in this process, you’re on your way to negotiating a family plan. Engaging a mediator who is experienced in working with families in parenting time and custody matters is the next step.
A parenting plan is not necessarily a compromise between parents. A compromise indicates that neither parent got exactly what he or she wanted, with the end result being something resembling a total snapshot of agreement. Psychologists study parenting plans all the time (actually, they call them parenting plans or child custody & placement agreements). There are certain points of agreement that any co-parent can agree to without further negotiation. If both parents understand these basic principles, the parenting plan process moves more smoothly. Here are some of the basic principles that I find most parents generally agree on:
However, there are additional situations that require negotiation, which sometimes lead to more strenuous debate. Getting through those steps is what the parenting plan process helps parents do.
Elements to Cover in Your Agreement
When you enter into a child custody agreement or parenting plan, the agreement will become part of the final court order. As such, it’s essential that the terms of your custody agreement are clear and precise. Vague or ambiguous provisions have the potential to cause problems later on down the road.
As you contemplate the terms of your agreement, you should always take into consideration the needs of your children and how the components of your agreement may impact your parenting relationship and the way you and your co-parent communicate about important issues.
Visitation Schedule – Perhaps the most fundamental element your custody agreement will detail is the visitation or parenting schedule. Depending on your circumstances, your plan might involve full physical custody, partial physical custody with a residential schedule, or joint physical and legal custody options with a shared schedule. It’s vital to include information about where parenting time will occur, how expenses will be paid for during exchanges, how transportation will occur, and whether your plan will address holidays or other special occasions.
Decision-Making – Another key element to include in your plan is a method for making decisions on behalf of your children. If either parent has full legal custody, that individual will have the ability to make all decisions on behalf of the children, but if parents have joint legal custody, you will need to have guidelines in place as to how decisions will be made and how disagreements will be resolved. At a minimum, your plan should identify the areas in which you will make decisions jointly, and those areas in which one parent will have authority over day-to-day decisions.
Communication – Communication is perhaps the most important element to address in your parenting plan. While some parents share the same goals, it’s important to remember that your ex-spouse or partner may have a very different style of communication. A detailed communication component of your plan will help reduce conflict and arguments in the future. At a minimum, your plan should address whether communication will take place in person, via email, text, or phone. You should also identify how often communication will occur and whether communication about the children will be conducted in front of them. It’s also a good idea to include provisions that prohibit certain forms of communication, such as texting while driving or abusive language. Finally, your plan should address how communication between you and your ex-spouse or partner will take place, which can further reduce conflicts and misunderstandings.
Leveraging Mediation and Collaborative Law
Another option for negotiating a custody agreement beyond court is mediation. Courts often mandate mediation before setting matters for hearing. That’s because the courts want to be able to see that the parties have truly made efforts to resolve, and that is in the best interest of the children. The definition of mediation is simply the process by which two parties resolve a conflict where a neutral person (the mediator) helps them reach a settlement. Mediators do not provide legal advice nor do they act as judges. Instead, they guide the parties through the process of coming to an amicable resolution.
Mediation is a non-binding and confidential process where issues are discussed with the goal of reaching an agreement. A mediator often provides guidance for the design of the process and the issues to discuss, as well as managing the format for discussion.
The parties retain ultimate control over the outcome. The result of this type of negotiation is a binding contract between the parties. If that contract is not honored at a later date, then the party who didn’t comply will be in contempt of court for not following the agreement.
Many people get confused about signing a contract with a mediator and the judicial system. How can that be? We have to remember that it’s the judge at the top of the judicial system that must approve the contract before it can go forward. But a judge is not going to approve something that a magistrate or family court facilitator has not also signed off on. As the mediator, their role is to ensure that both parties understood the process and were properly informed before signing the contract.
This is a very important part of the mediation process because if people feel like they have been pressured into an agreement, they’re not going to honor it. Or at first, they might honor it, but then it will come back to bombard them later on. So the signature of the mediator is a balancing tool for the agreement. The judge is not going to feel comfortable signing anything that was not completed with competency throughout the process. A lot of judges won’t even assign a matter for trial until mediation has been done, because they want to see that the parties have really tried to work things out.
It’s important to understand that the parties can draft their own custody contract . They can get through it themselves, and that doesn’t mean it’s invalid. A lot of people are afraid of the process because they don’t understand very well how it works, or what the implications are. It is a legal contract, once both parties sign it and it’s presented to the court. When drawing up your custody contract, you might want to work with a lawyer, or at least have a lawyer review it. A lot of lawyers will also certify the contract as acceptable and reasonable for their clients, which gives a heightened sense of security before you bring it before the judge.
You can even have the mediators draft the contract for you, if you can’t come to an agreement by the end of the mediation sessions. During the mediation process, you can ask the mediators to draft or write up an agreement based on the issues you were able to agree upon, and then the next mediation session can be spent discussing those issues you were unable to agree upon.
A couple points to remember when selecting a mediator: Collaborative lawyer is another avenue for creating a contract without going to court. Collaborative lawyers literally collaborate with each other and focus on each party’s best interest in negotiations. This is different from a traditional lawyer, who interprets the law and advises you based on guidance from the law and analysis of your case. They have a specific role and aren’t usually as flexible with process as a collaborative lawyer would be.
In some states, lawyers must receive advanced collaborative family law training to practice collaboratively. However, in South Carolina, any county not subject to mandatory continuing legal education has no train certification for collaborative practice. Theoretically, collaborative lawyers work within a framework of agreed procedures before their clients reach the courthouse, but in practice any competent lawyer can practice collaboratively so long as he or she makes the agreement with the client to proceed, and the agreement with the other party and their lawyer to proceed collaboratively.
The parties and their lawyers typically agree that the process is voluntary and everyone must agree to solutions. The lawyers typically agree they will disqualify themselves if the process turns adversarial, meaning they won’t represent their client in court if they cannot reach a result in the collaborative session.
Getting it in Writing and Finalizing Your Custody Agreement
The draft of your custody agreement will include the same general elements as a traditional judicial custody order. While the process may be more amicable and amicable, it is still important to make sure that both parties’ rights and the best interests of the children are clearly and adequately represented in each provision.
Like any other type of contract, a custody agreement can be negotiated and amended as many times as is necessary before both parties feel fully satisfied that the draft adequately protects both of their best interests. Remember, this agreement will affect you and your children’s lives going forward for many years. It is very important that it covers all of the arrangements the two of you agree on and do not leave out any important considerations that could have a significant impact in the future.
It is critical that both parties and their attorneys review the agreement and its terms thoroughly before signing. There are many different things that could be specific to your situation, so it is important to double check the document to make sure everything is clearly laid out and that you feel confident that it can be followed by the parties to the agreement in an easy and straightforward manner. Again, any changes that need to be made should be considered at length and thoroughly discussed with the other party.
Once you and your partner are both in agreement, the document can be signed by both parties. It would be wise to have the finalized custody agreement reviewed by a family law attorney, particularly one who has experience in mediation or collaborative law. If both parties agree, the attorney may even assist in drafting the new final version. The attorney could then be listed in the agreement as a third party who would be able to help resolve any disputes that might arise in the future.
Even without this formality, once both parties have signed the custody agreement, it becomes legally binding and both parties have a duty to adhere to each of its terms. Following this process and having the custody agreement reviewed by attorneys skilled in mediation and collaborative law should make for a workable and fair agreement that is not onerous to either party and is aimed at providing the best possible life for the children.
Ensuring Legal Enforceability Without Going to Court
When creating a custody agreement without a court order, it is essential to ensure that the terms of the agreement are legally valid and enforceable. For this reason, it’s crucial that both parents seek legal advice before drafting and signing a parenting agreement. Parents can choose to consult with an attorney prior to writing the agreement, but should at least take the time to have the document reviewed once it has been written. When consulting with a legal expert, parents should be upfront with the attorney about what they’re doing, and you may even find an attorney that is willing to allow you to write the agreement without going through a full office visit. The attorney will then review the terms and conditions of the arrangement as well as the legality of the provisions and sign the document. To be most effective, parents may consider consulting with a local attorney, as each state has slightly different laws pertaining to custody arrangements. To further solidify the legal validity of the agreement and to protect the document from alterations and fraud, parents may consider having the agreement notarized. Notarization can help guarantee the authenticity of the signatures and documents, and provides an additional layer of protection.
When You Need to Take Your Custody Battle to Court
While working together to create a new custody agreement after a divorce is preferred, there are times when parents cannot find common ground to reach a consensus. Or, an original custody agreement may go out of date due to unforeseen circumstances or the financial well-being of the kids. When to make the decision to go to court can be difficult for divorced parents. Custody cases occurring later in life may involve issues such as forced relocations or professor jobs that require long absences from home. When a parent finds a new partner, there’s the risk that the kids from the first marriage will feel neglected or ignored while the new step-siblings receive preferential treatment. When a serious incident has occurred that puts the child at risk , it may be time to involve the court. If one parent is suspected of endangerment via physical or sexual abuse or the creation of hostile living environment for the child, it is imperative that the situation be swiftly reported to law enforcement and child services. When the parent refuses to seek counseling or continue drugs and alcohol abuse recovery, the danger to the child escalates. Another reason to consider the court is when one parent refuses to abide by provisions already in place. An uncooperative parent may try to retain physical possession of the child in order to threaten, intimidate, or exert control. The court can issue a neutral decision that protects the safety and best interests of the child. Unfortunately, disputes can also occur over property division and spousal support. The court provides an impartial third party, a judge, who will deal fairly with all aspects of divorce.