What is a Custody Agreement?
An Important Part of Family Law, Custody Agreements Set the Groundwork for How You and Your Child Will Move Forward
It is important to note at the outset that this blog will only address parenting time and residential custody and issues regarding decision-making on big issues regarding children. It will not address child support, which is a very important issue but which warrants its own discussion. Otherwise, almost every part of aspects of child custody and child support is part of what is referred to at the outset of this blog as family law. The essence of our judicial system is that parties can be self-determined to a large extent. Of course there are many areas in which we are governed by rules or other restrictions. With regard to the custody of children, however, it is largely permitted to play out unfettered, except for negligently or otherwise dangerous parenting, or by the taking of appropriate action to protect against such harms. As noted in the beginning of this blog, when parties have children, almost invariably there must be some form of written protocol, or custody agreement in place . These agreements can either dictate the time which a parent is to have with a child, including vacations, holiday and special occasions, or they can just spell out a schedule agreed upon by the parents that is to be followed. Often, the basic parenting schedule can be agreed upon in writing. However, as the child grows or other circumstances change, differences may arise as to what areas require attention and that need to be addressed. As the child grows, especially as school needs change or extra curricular activities come into play, it is often the case that a basic schedule serves as a good foundation for what comes down the road. While there may be disputes as to whether parents are complying with the schedule, or simply what the times might be as the child grows, there may be relatively few disputes down the road, and problems may be few and easily worked out. The interesting and sometimes controversial part of custody arrangements often comes down to issues that impact directly on the child, such as school district, child care or summer camp. One issue that has become apparent over time is that these issues, which can sometimes be an even greater source of conflict than the frequently simple scheduling matters, often go unaddressed in the various formats which may be utilized.
Common Loopholes Within Custody Agreements
The most common loopholes in custody agreements typically involve confusing language. This leaves room for misinterpretation. The most generic of custody agreement formulations state that the child shall live primarily in the home of Parent 1 and Parent 2 shall have visitation. This just begs for one parent to become overbearing and not allow the other to see the child for what commonly are standard visitation times. It is not unheard of for one parent to maneuver these confusing wordings to their own advantage. Custody agreements need to be precise and full of detail. If you do not have the child 50% of the time, then almost all of your time with the child needs to be spelled out clearly. For example, if you have visitation every Thursday evening from 5:00 to 8:00 and alternate weekends beginning on Friday at 5:00 and ending on Sunday at 5:00, it needs to say that. Any loopholes in the dates or times could result in misinterpretation by the others involved. You should also try to standardize your visitation schedule so that there are no misunderstandings about holidays. For example, if your holiday visitation is variable, it will read "Father shall have visitations with the child on Easter." But Easter does not fall on the same day every year. Therefore, it is better to state the visitation schedule in terms of "on the fourth Sunday of Easter." Similarly, the term "Father shall have both Christmas Eve and Christmas Day" is not specific enough. First of all, Father may have plans to celebrate Christmas Eve elsewhere. Secondly, Christmas is often looked at as a full week. Therefore, it is better to specify days like Christmas Eve or even alternate Christmas Eves in some years.
Impact of Loopholes on the Welfare of Children
Loopholes in custody agreements and parenting plans are not uncommon. Parents are sometimes so relieved to have reached a settlement, or to have a legal device in place to resolve their dispute, that they neglect to anticipate potential areas for abuse of the agreement. One of the most common pitfalls is in failing to consider in detail how planned blocks of time over an extended period will affect the tax dependency right granted to one parent and the child credit.
Most divorce and separation arrangements regarding minor children specify a 12 month block of time where one parent "claims" the child as a dependent. The IRS has a process to claim the child as a dependent on the tax return in the event of a single household setting. However, when the parties are living under a parenting plan with two households that have equally qualified parents, which parent gets the tax break? The answer can be complicated if it is not addressed in detail in the Parenting Plan, that is clearly written and agreed to by both parties to the agreement.
Additionally, many Parenting Plans contain clauses that prevent one parent from being overly aggressive when dealing with the other. In other words, the Parenting Plan may contain provisions such as, "Mom will not yell at Dad regarding make-up work when he misses a weekend visit with the kids due to baseball practice." However, it does not specifically state that Dad will not respond to Mom’s yelling. In this example, the loophole is more about what is not stated, than what is stated. In order to avoid the loophole, the Parenting Plan should be exhaustive, spell out explicitly what is permissible and what is not. A helpful alternative would be to incorporate language and practices that promote conflict resolution under circumstances where the Parenting Plan may be silent. In other words, trying to have the parties communicate, instead of going straight to court to litigate.
The long term effect of the loophole is that the children can become caught in the crossfire of angry parents. A parent may want to be close to the child and avoid all conflict, whereas the other parent may be angry at the other parent and look for ways to punish the other parent, without regard to how it might affect the child. When this happens, the children gauge their worth based on the reactions they receive from the parents. With the example above, even though the Parenting Plan is silent about Dad’s yelling, the children begin to act out and respond to both parents’ anger. The following statements tend to come up: "You made Dad yell at me." "I don’t like Auntie Betty. She keeps yelling at me too." "I don’t want to go to Dad’s home this weekend. He makes Mom so mad, I don’t want to see her get upset again." "When I tell Dad I don’t understand the homework, we don’t even talk about it. He screams and throws his hands up and walks away." These experiences can leave scars on children that they carry with them as adults. They may feel less deserving of love, confidence will be lacking and ultimately pain and loss can be long lasting.
Instead, try to frame the Parenting Plan in a positive nature, spelling out who may do what, how the other parent may contribute to the activity, how parents can praise the children for their accomplishments and how their behavior should be exemplified. More than anything, the Court must have a Parenting Plan that provides a declarative statement about compliance with the agreement. In this instance, "In the event of a conflict, the parties agree to meet with the Guardian ad Litem and/or a mediator to work out the details of compliance with the Parenting Plan."
The impact of the loophole on long-term success in a Parenting Plan can be avoided by including specific language that negates the loophole. Realistically though, the loopholes can’t be avoided unless someone thinks to include them in the Parenting Plan. So, finding a creative lawyer who is willing to take the time (and charge for that time) to spell out all of the considerations, prior to signing the Parenting Plan, may be your best bet.
How to Identify and Close Loopholes in Custody Agreements
The best way to close loopholes in custody agreements is to prevent them from emerging in the first place. This requires a strategy that takes into account precise language and detailed documentation. A professional with strong legal knowledge, whether a lawyer or judge, will be able to pinpoint and interpret loopholes—and an experienced child custody lawyer can help you close them to prevent future complications. There are two key strategies to prevent and avoid custody loopholes: When it comes to custody agreements, specific and clear language will almost always win out against the use of generic terms. For example, a custody agreement may stipulate that one parent or the other has "primary" custody. But what does "primary" mean? Because the term is not specific in nature, it can be used in many ways. If your child’s custody agreement stipulates physical custody on holidays, weekends, and weekday evenings, but the document is vague about which holidays or evening hours, then it’s difficult to understand how the arrangement should truly work. It’s important that you work with your child custody attorney to ensure that the arrangements are laid out in detail—so that you can minimize misinterpretation. Otherwise, there could be a misunderstanding down the line that ends up being the source of a contentious conversation or even a courtroom visit. Documentation is another important method to closing loopholes in child custody agreements. If an event occurs that potentially violates the terms of the agreement, then it’s important that your lawyer working on your family law issue receives sufficient documentation that helps him or her weigh in on the violation. For instance, let’s say that your child’s school occurs every Tuesday at 6PM. On one occasion, your spouse decided to take your kids to a movie on that day, thus violating the custody agreement. It’s possible your spouse was simply not aware that you had school obligations and thus could not attend. But what if this happened again? In that case, it’s time to ensure that your spouse understands the custody agreement, and that he or she cannot keep the children away from school during your scheduled custody period. Documentation will also be necessary to track whom exactly is to blame when the agreement is violated, because loopholes often emerge from a lack of awareness. In short, without proper documentation, it can be difficult to determine who committed the violation.
The Role of Mediation and Attorneys
The role of mediation and legal counsel in drafting enforceable custody agreements and closing existing loopholes cannot be understated. For one, mediation offers an objective third-party in a family law matter who is familiar with the current trends and obligations in the jurisdiction where the agreement is being enforced. The mediator can educate the parties about how to structure their parenting plan in a way that will close some of the more obvious loopholes.
Of course, many people still choose to enter into a mediated settlement agreement without having counsel that is versed in the enforceability of custody and parenting time agreements to engage that mediated settlement at some point in the process. In those cases, when legal counsel has not been involved in the matter until the mediated settlement is reached, the parent may be able to provide the attorney with a workable draft of the priority in the settlement. The lawyer will be tasked with bridging the gaps that are certain to pop up when the agreement is drafted and, which ultimately may cause enforcement issues down the road , where the parties fail to think through the language of the agreement or otherwise under-estimate the need for solid definitions at the time the agreement is drafted.
The role of legal counsel goes beyond drafting a workable 2.0 version of the mediated settlement agreement. A lawyer should also be able to suggest alternatives that will lead to more solid settlement terms or identify issues in the mediation where the parties may need the assistance of forensic experts to get to closure. A lawyer is there to assist the parties with analyzing their mediation options – which may include negotiating with the other party or third-parties regarding any issues, or learning that litigation may be a viable tool that must be utilized to reach resolution.
There are many ways to choose whether legal counsel is right for a client when it comes to closing loopholes in a mediated settlement included in a parenting plan. For example, how complicated is the family in question? How many children are involved and how many older children are involved (does the age of the youngest child have an impact in negotiating the deal)? It also depends upon the other parties’ attorneys. Even if a party chooses no legal counsel, mediation is likely to have a good result if the other parent is represented.
Case Examples of Loopholes
In one instance, a non-custodial parent included language in a custody agreement specifying a 50% cost split for any medical expenses not covered by insurance. At first glance, this type of clause seems to be forthright and fair. However, the custodial parent was not informed that this same language included co-pays, deductibles, and other out-of-pocket expenses. The custodial parent was then startled to discover that they were required to pay 50% of the child’s medical expenses, on top of the majority of other expenses.
A better approach would have been to include a numeric ceiling on how much the custodial parent should be expected to pay each year, since medical expenses are not always predictable. This not only helps avoid burdensome expenses, but can also help eliminate surprises down the line.
In another case, a custodial parent failed to communicate to their co-parent that they planned to move out of the country. While they were granted permission to leave the country as part of their custody agreement, the parent failed to communicate the move beforehand, which made it difficult for the non-custodial parent to adjust their visitation schedule.
Consideration should have been given after the enumerated duration of the time a parent could be out of state. Can the agreement include some sort of electronic or telephonic communication requirements if a parent needs to travel out of state, even if it is not initially specified? It may also be worthwhile to set out consequences clearly, such as loss of visitation.
One last case involved some potential confusion over the meaning of a split custody agreement. The parents had joint custody, 50/50, but the agreement did not specify how to subtract the time. The non-custodial parent thought it meant 50% of biology year-round. The custodial parent thought it meant half of the time the child spent with the non-custodial parent throughout half a year, for example summer breaks. This confusion could have been circumvented with a simple detail.
Include all details of how dates will be calculated. 50% of the year can cause confusion, especially during leap years. A simple solution could be to specify four days every week that the child/parent would spend together.
Future Considerations of Custody Agreements
The future of custody agreements in family law may see a reduction in loopholes if current trends continue. An increasing recognition of the importance of both parents in a child’s life has led to a rise in shared parenting arrangements that could help to minimize the risks of creative interpretations of custody terms.
Legal reforms in some jurisdictions are already reflecting an increased focus on minimizing conflict between parents and maximizing the role of both parents in a child’s upbringing. Courts are increasingly emphasizing the concept of the "best interests of the child," and legislative changes in many regions explicitly require the consideration of shared parent involvement. This shift may encourage more collaborative and cooperative parenting, potentially reducing incentives for exploiting ambiguities in custody agreements.
Technological advancements also have the potential to reduce loopholes in custody agreements. For example , advanced smartphone location-tracking can limit the possibility of one parent misusing custody agreements that place limits on the behavior of the other parent. In other areas, the rise of social media provides a source of documentation that can be used to enforce or amend existing agreements.
Moving forward, simplification of language in custody agreements could further limit the room for interpretation. The increased availability of resources and tools for drafting, reviewing, and revising child custody agreements online may drive this simplification as technology and accessibility replace the traditional "one size fits all" approach. In this evolving environment, a focus on uniformity could reduce the opportunity for conflicting interpretations, limiting the ability of parents to exploit legal loopholes.
The future of child custody agreements will ultimately depend on the evolving legal and technological landscapes, but there are many reasons to be optimistic that the trend toward diminishing loopholes will continue.