Battling a child custody case in court is a lengthy and expensive process.
As a parent, you are always faced with the difficult decision of deciding how to split up your child’s time between both parents. With so much on the line it can be hard to make a decision.
You want what is best for your children and if that means going to court, then by all means do it!
However, there is an easier way in which you can create an agreement without having to go through any legal proceedings at all.
One of the benefits of solving custody issues outside of the court is that it promotes the long-term cooperation of the parents.
This is beneficial for the growth of the child or children both psychologically and emotionally.
Read on as we discuss this process and why it might be beneficial for some families.
Understanding a child custody agreement
A child custody agreement is a written document that is agreed upon by both parents after separation or divorce, or drafted by the court and details the rights and responsibilities of each of the parents concerning their child or children.
This document is binding when approved by the court.
Therefore, the parents can work together to come up with a written agreement with the help of an attorney or a notary. This can then be presented to the court for approval for it to be enforceable.
A child custody agreement will entail the following:
- The primary physical custody
- Parental responsibilities
- Visitation plan including holiday schedule
Primary physical custody
This is always the biggest point of contention between parents since each parent usually wants to see the children each day.
When deciding on who should take the majority of parenting time, you ought to keenly consider the interests of the children, the environment, safety and security, and social amenities such as schools, hospitals, and also the age of the child or children.
Of course, if the child is still nursing, it would be pointless for the father to demand majority custody at this time.
The parents will also need to agree on major decisions regarding the child or children’s education, welfare, and healthcare among other issues.
A parenting plan captures the responsibilities of each parent in raising the child or children.
Some states like Florida, Colorado, Alaska, Minnesota, New Jersey, and Kentucky among others give both parents 50 percent custody.
Some of these States also encourage joint custody over sole custody. That means all the responsibilities and time is shared in a 50/50 agreement.
In this phase, the parents can agree on child support terms as well. That includes education costs, sports and after school clubs and programs, medical expenses, and other things that touch directly on the child or children.
This section will usually include boundaries and code of conduct toward each other as well. Guidelines are established on raising the children in a peaceful cooperative manner.
Visitation plan with holiday schedule
Making visitation agreements outside the court is better than those imposed by the court.
This is because parents are more likely to obey or comply with what they have agreed upon.
Parents will craft their agreements on the amount of time to spend with the children, pickup times, drop-off times, how and where the children will spend holidays, and vacations.
How to Make Child Custody Agreements Outside the Court
Outside the court, the parents must be willing and committed to solve issues and amicably come up with an agreement for the benefit of the children.
Child custody agreements done outside the court are less expensive and take a much shorter time than the court process.
It is also less adversarial and sets a pace for further cooperation for the best interests of the children.
In this method, parents would seek alternative dispute resolution methods through negotiation or mediation.
Alternative Dispute Resolution
Rather than taking matters to court, you can resort to amicably agreeing on child custody terms, rights and responsibilities, visitation plans, and child support agreements using alternative methods such as negotiation or mediation among other ways.
Mediation is one of the best methods to draft a child custody agreement without the court.
It is a process where a neutral person or mediator guides parents in a bid to arrive at an agreement.
The decisions are left for the parents and the work of the mediator is just to facilitate and help both parents understand issues that may be raised.
A mediator can be an attorney recommended by the court or private party chosen by the parents.
In some jurisdictions, the mediator is required to make recommendations for the parents in the event they fail to agree on some issues.
Advantages of child custody mediation over the court process
Child custody mediation has numerous advantages.
Both parties can speak more freely in mediation which encourages better cooperation and commitment to make better decisions for the benefit of the child or children.
Some of the advantages of mediation include the following:
- It takes less time than the court process.
- It is less expensive compared to the lengthy and expensive court process.
- The parents can be flexible when solving matters outside the court.
- Mediation sets a pace for better collaboration in raising the child or children.
- Mediation is less adversarial and focuses on a win-win formula.
- Reduced conflict and less stress for the kids.
- Focuses on the long-term and best interests of the child or children.
- Mediation also facilitates easy modifications that may arise in the future.
This agreement is a binding contract that can be approved by the court for it to be enforced.
Just like in mediation, negotiation should seek to analyze issues for the best interests of the child.
In the end, both parents should be equally “dissatisfied” with the outcome.
That’s how you know it is fair, there should never be one winner and one loser.
Things to Address when Drafting Child Custody Agreements Outside the Court
You and your ex-partner need to be systematic to ensure that you capture everything, as if you were doing it in court.
This will help minimize future conflicts that may arise.
You should highlight all the areas of child custody that needs to be included in the agreement such as:
The type of custody
There are two main types of custody agreements or arrangements.
Joint custody and sole custody.
Joint custody is where the parents share the responsibilities equally and also cooperate in making major decisions affecting the child or children.
Sole custody is whereby one parent is responsible for all the major decisions affecting the child.
Some States such as Arizona, Columbia, and Nevada among others have got statutory provisions that promote joint custody over sole custody.
It is for the best interests of the child or children that these provisions were enacted.
It is important for parents to agree on who is responsible for making major decisions such as education, healthcare, and major issues that affect the child.
What forces couples into court, in most cases, is each party seeking physical custody of the child or children.
The living arrangements are a big issue to address when drafting a child custody agreement.
If you and your ex-spouse live near each other, you can agree on who will be the primary custodian of the child. The primary residence is where the child will sleep and spend most days.
Most experts agree, it is not a good idea to have children shuffling back and forth between two households.
Instead of feeling that they have two wonderful homes, they end up feeling instead that they have no real place to truly call home.
With that said, there is no cut and dry method here.
Numerous families across the country have arrangements that work for their particular situation, but would seem strange to the rest of us.
Trust your gut when working out the best schedule for you and the kids.
Consider the security and safety of the child or children, and the overall environment where the child will grow.
Just like it would have been done by the court, you and your ex will draft a visitation schedule.
You will need to agree on a schedule when the children will be with each parent, and the means of transportation as well as how they will spend their holidays.
It is for the benefit of the children that the parents should have enough time with the children.
Therefore, when drafting a visitation schedule, you need to cooperate on issues that are of great value for the children.
Vacations and holidays
During vacations or holidays, children should enjoy their time just as they did before you and your ex separated or divorced.
For their benefit, Major holidays should alternate each year, unless there are traditions in place the children have become accustomed to like going to your ex’s side on Christmas eve, and your family on Christmas day.
Avoid breaking tradition or routines, as this will help children feel more secure and stable.
As parents, you need to communicate and share issues that affect the children.
It is in the best interests of the children for the parents to have a clear communication strategy.
Children should always have immediate contact available with both parents, regardless of where they are.
It may seem excessive to allow a child to talk to the other parent during your scheduled time, but this is what they were used to when you were still together.
Children go through phases, and this is most likely a temporary issue.
You should always prioritize the interests of the child, and where possible, give them enough parenting time with each of the parents, even if that is on the phone.
Child support is one of the most controversial issues in a custody case.
In joint custody, parents agree to share all the parental responsibilities equally.
The best way to achieve this is to add up any cost beyond those daily expenses for each household, and split them equally. These will include medical, school, sports or activities,haircuts, phone and such.
Things like clothes, food, toys and general day to day expenses will normally be the responsibility of each parent to stock their own home.
It is invaluable for both of you to agree on a joint effort in raising the child. You should be fair to each other when dividing the costs involved in raising the child or children.
Transportation and travel
Transporting the children back and forth can become a point of contention, but it doesn’t need to be a source of stress.
The easiest rule of thumb here is, “you want them, come get them” for lack of a better phrase.
This basically means both parents will share the responsibility to pick up the kids, instead of expecting one parent to do all the driving.
This method saves so much time and eliminates much drama like:
- a parent doesn’t have to wait for the child to be dropped back off
- eliminate excuses for late drop offs (traffic, work, vehicle trouble, weather, etc.)
- If you are late picking up, then the other parent enjoys more time
- equal wear and tear on both parents vehicles, gas cost, drive time
Parents may also want to consider meeting halfway each time… But in my experience, it is pointless.
It makes more sense for the kids to be in the house waiting, rather than a random gas station somewhere.
The drive time between homes is much quicker, without stopping halfway, and the parents are still doing the same trip whether they go to the other house once and back, or halfway and back… TWICE.
The only exception to this would be, if one parent or both just CANNOT handle having their ex sitting outside their home, for even a brief moment to pick up the kids.
Enforcing the agreements
After you have finished drafting the agreements, you may need to get court approval so they can be enforced.
You may get the help of an attorney to help you in the process, or you and your ex-spouse may take the agreements to the court for ratification by the judge.
Once the agreements have been approved, they become binding and enforceable by the court, or rather, by law enforcement with a court order.
Therefore, you and your ex-partner should agree on whether or not to enforce the agreements that you have drafted.
Changing custody agreement without going to court
If you are successful in drafting agreements outside the court, then it should also be possible to change child custody agreements without having to go to court.
You can always modify the agreements to adapt to the changes that you, your spouse, or the children are undergoing as the kids get older.
This happens when one parent relocates, gets a new spouse, gets a new job, the kids express interest in moving or spending more time with the other parent, among other concerns.
You will follow the same routine as before to write up a new agreement and have it notarized and stamped by the court if you want it legally binding.
How to change custody agreements without going to court
The first thing before changing the agreement is for both parties to agree on the need for modification.
If one parent is resistant to modification, then there is the option of getting an expert attorney or mediator to help arrive at a consensus.
Once you have agreed on the modifications, you can then seek the approval of the court directly or through an attorney.
Of course, the aim is to not go to court since a court process can be lengthy and expensive in the long run.
Therefore, you should try to exhaust all out-of-court possibilities of reaching an agreement with the other parent to consent for modifications that you are seeking.
Reasons for changing child custody agreements
Modification of child custody agreements is sometimes inevitable.
As the children grow, things change and their interests may also change.
Some of the reasons that may necessitate the need for child custody agreements modification include the following:
Physical relocation by one of the parents may affect the agreement that had been made.
One parent moving far away from the other may mean the children will have to forego weekday visits and focus more on weekend time together.
If the distance is too far, the parents might decide the kids will stay with one parent for the school year and spend the summer with the other.
This is not ideal, but with holiday vacation schedules, and a lot of phone time, it can work.
As children grow, their interests may change.
This may be boys wanting to spend more time modeling their father, or a daughter that has a lot of after school clubs and activities, and needs to be closer to school often.
When this happens, both parents can agree on adjustments or modifications to child support, or parenting time as needed.
Disregard to custody terms by one of the parents
If one parent fails to comply with the agreements that were approved before, you can negotiate for change if necessary or if minor issues need to be adjusted.
One parent may start to disregard the terms due to some circumstances that were not foreseen such as losing a job.
When this happens, both parents should once again agree on the changes that best serve the needs of the children within the current situation.
Safety of the child or children
The safety of the child is of paramount importance. You don’t want to see the child grow up in a toxic or dangerous environment.
This may be due to issues related to domestic violence and abuse, or where the custodial parent develops some mental issues or engages in weird social behaviors that would put the child in danger.
Therefore, if one party or the child is uncomfortable with the environment that he or she is exposed to, then there is a need to modify the terms in the agreement for the sake of enhancing the safety of the child or children.
Death of one parent
If one of the parents dies, especially if the parent who dies was primary custodian of the child, the court may require the remaining parent to seek modifications.
This may seem unnecessary, but it does happen from time to time, a grandparent or third party will petition for custody of a minor child.
This does happen more than most people think, especially if the child or children are very young.
Of course, in some instances where the other parent may be suffering mental problems, the court may grant guardianship of the child to a third party, but this is rare.
It is possible for willing parents regardless of how they separated or divorced to negotiate and draft child custody agreements without going to court.
This will take much less time and resources as compared to the court process that may take many years and cost the same as a car or small house.
The mutual effort by the parents to solve custody issues outside the court is also good for the children’s emotional and psychological well-being.