Reaching a Child Custody Agreement out of Court

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The best method for reaching a custody agreement often takes place outside of the courtroom by mutual agreement between the parties involved, and sometimes a neutral third party. A reasonable custody agreement arrived at between the parties in a mature and open manner will probably be acceptable to the court.  The agreement should also address the possibility of a custodial parent moving out of state.  At the very least, the custody agreement should contain a legal clause which requires notice be given to the non-custodial parent that includes a reasonable timeframe when one parent wishes to relocate.

Informal Negotiations

Parents who get along in an amicable fashion, may be able to agree on a written custody agreement by drafting an agreement themselves.  If one parent is to have physical custody and one is to have partial custody and visitation rights, decisions must be made regarding where the child will spend their birthday, special holidays and other family occasions.

What is Alternative Dispute Resolution (ADR)?

Child custody can be resolved through informal negotiations between the parents or other parties through alternative dispute resolution (ADR) proceedings.  This is an emerging concept that covers a variety of processes by which disputes between parties can be settled outside the courtroom without a lengthy trial. A family can negotiate a parenting agreement, with or without the assistance of attorneys.  The ADR process tend to be less adversarial and more casual than the traditional court setting.  ADR may be advantageous when considering factors such as:

  • The degree of conflict between the parties on issues being disputed
  • The degree of the parties ability and willingness to work together to resolve issues
  • The degree of the parties motivation to limit issues from being public record

The most common types of Alternative Dispute Resolution are Child Custody Mediation and Collaborative Family Law.

Mediation of Child Custody

The vast majority of custody cases are resolved through informal settlement negotiation such as mediation.  This is a non-adversarial process where a mediator meets with the parents to help them settle their dispute.  Mediation of custody issues can enable you and your spouse to avoid hostile, stressful and traumatic litigation of a custody dispute.  It provides both of you with the chance to reach the common goal of serving your child’s best interests in a civil manner.  The mediator does not have the power to impose a solution.  Their role is to assists the parents in creating an agreement of their own.  In some states, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement.  Many states require parents to attend mediation as a first attempt to reach a child custody and visitation agreement.

There are many advantages to mediation which include:

  • Mediation usually does not involve lawyers or expert witnesses
  • Mediation usually produces a settlement after five to ten hours of mediation during a period of one to two weeks. 
  • Mediation enhances communication between the couple and makes it much more likely that they will be able to cooperate after the divorce when it comes to raising their children.

The steps involved in the mediation process are:

  • Initial meeting with the mediator
  • Identifying and categorizing issues
  • Discussing solutions with a give-and-take attitude
  • Preparing your custody agreement

The length of time that mediation will take depends on many factors, such as the number of custody issues, the complexity of the issues, and the commitment of all parties to reach a successful agreement.

Collaborative Family Law

There is a growing effort to promote and encourage “Collaborative Law”.  This can be a useful process which can reduce the legal costs and animosity between the parties when trying to reach a child custody agreement. 

Collaborative Law was designed where an absolute commitment to a settlement is the primary focus and sole agenda for all parties involved.  Each side is entitled to legal advice from their attorneys and advocacy is built in at all times during the process.  The collaborative law process puts two lawyers in the same room guiding them in the same direction to resolve the issues in dispute.  The setting differs from alternative dispute resolution and mediation in that there is no neutral third party at the center of the process.  As negotiations progress, they can choose to hire counsellors or experts to assist with accounting matters, asset valuation, or other issues that may arise during discussion of support obligations.

The collaborative law participants and their families may be spared a certain amount of stress on themselves and on their family relationships.

The Parenting Plan/Agreement

If you and your partner are separating or undergoing a divorce, the most important task will be to create a parenting agreement.  No matter how much animosity you may be experiencing at the time, you need to focus on putting your children first and do everything you can to make mutual custody and visitation decisions as opposed to letting a judge decide what’s best for your family.

What is a Parenting Plan?

A written parenting agreement can help set the stage for a successful post-divorce relationship.  This process will allow you and your ex-partner to discuss the primary issues that you will face during your children’s lives.

A parenting plan is a document which outlines the parenting schedule and can include each parent’s responsibilities in raising their children.  It can be detailed and lengthy, or it might be brief and simple.  There is no “one-size-fits-all” parenting plan that works well for all families.  Some parents may have a shared parenting plan which allows the child frequent or continuous contact with each parent 50% of the time.  Other plans my limit one parent’s contact to every other weekend plus a mid-week or overnight visit.

When parents come to a mutual agreement on reaching a plan that fits the needs of the family, they will enjoy a more predictable and consistent schedule.  This will reduce the amount of misunderstandings and conflicts that often arise during litigation and court battles.

It is advised to create a parenting plan which reflects the best interest of your child and you should consult with an attorney before signing any agreement.  The court will review your parenting plan to see that it fulfills the best interests of the children.

Factors Considered in the Custody Agreement

Type of Custody

You and your ex-partner will need to determine the custody agreement that works for both parents and their children.  There are a variety of custody arrangements you can choose from.  If you live in close proximity to each other, it might work well to have a shared parenting schedule with equal time.  Another arrangement may be for one parent to have custody of the children while the other parent has visitation.  The primary objective is to come up with a plan on which you both agree that will work best for all parties involved.  You may even want to obtain input from the children if they are at an appropriate age to give their opinion. 

Parent and Child Living Arrangements

Children most often state that they want flexibility in their living arrangements.  They want to be able to transition between households on their schedules, and not their parents.  Children need to know that their parents care about them and will continue to be a part of their daily lives with few interruptions and stresses.

Most children prefer that parents live close to each other.  This often allows the children to maintain a regular schedule without having to travel long distances from one parent’s house to the other.  Traveling is especially disruptive for teens that want to spend time with their friends.  They often experience ambivalence in wanting to see a parent, but not wishing to disrupt their own social lives.

Additional dislikes includes changes in rules and routines and the hassle of transferring clothing and possessions from house to house.  Whatever living arrangements you decide upon, keep in mind that flexibility is extremely to all parties involved.

Scheduling Visitation

When parents are geographically separated, the child may have a primary residence during the week and school year, and then visit the other parent on weekends, holidays, and during summer vacations.    The parenting plan should include when and where the exchange of the children will be made.  Make sure to include how emergency medical decisions will be made. 

Your parenting plan will need to address how much visitation the non-custodial parent receives.  Typical visitation amounts to approximately 20% of the total parenting time.  You will need to determine if there will be regular weeknight or overnight visits, and how often they occur.  You may need to customize the plan according to the age of the children.  What may be appropriate for a teenager may not be best for very young children who may require more time with the primary caregiver.  If the parents live in different parts of the country, visitation time may be limited to school and summer breaks.  No matter how the time is divided, all family members should have a copy of the schedule which includes dates and times.  For young children, this may be a color-coded calendar; for older children, a regular calendar should be satisfactory.  Knowing the schedule helps to keep the children in a routine.

When  you split up, it is easy to lose contact with relatives and significant family friends who provide support, encouragement and stability to your children.  Think about how you can keep these relationships going.  Be sure to include grandparent visitation rights in your parenting plan as well as time to visit with other relatives that may be part of the children’s lives, including aunt, uncles and cousins.

Holidays with Both Parents

It is important for children to experience holidays with both parents and to develop traditions with each parent and extended family as much as possible.  Parents should remember that whatever their relationship may be, the children will want to acknowledge holidays and special days with both parents.  You should have the child’s school calendar available when making holiday parenting plans. 

Holiday traditions involving travel to family gatherings should be considered when dividing holiday time.  Be sure to remember that holidays are an extremely important time for children of all ages, especially to younger school-age children who may wish to participate in decorating and gift-giving.

The Child's Education

Changing schools can be very disruptive for children.  To achieve continuity and stability, consider leaving schooling arrangements unchanged until the end of the school year.  If you live apart, it may be necessary for children to attend a new school.  Be sure to set time aside for children to study and complete their homework assignments.  Both parents should be prepared to help with homework when needed.  If it becomes necessary for a child to attend summer school, includes this in the agreement as a possibility, regardless of which parent has the child during the summer school period.

Travel and Vacations

Each parent should have vacation time with the children.  Parents should also take into consideration the child’s activities during the summer before making final vacation plans. 

When the children are on an extended vacation with one parent, they should make time for telephone contact with the other parent to ensure continuity of the parenting relationship.

Be specific if there are any age-related travel concerns for the children.  List any restriction on domestic or international travel.  Each parent should provide an itinerary of travel dates, destinations, and places where the child or parent can be reached when on vacation.

Contact via Email and Phone

Many families live far apart from one another, yet technology affords us alternatives in the methods of keeping in touch.  Each parent may have a computer with a built-in camera.  Children can use this to communicate with the other parent and be able to see one another while they communicate.  Some long-distance parents use this technique to read to their children, or share daily events, or show off their new toys, clothes, or pets.  The parenting plan can contain a schedule for visitation by computer, email or chat room. 

Violations of the Custody Agreement

If a parent violates a parenting plan, they may be held in contempt of court.  This requires obtaining an order to show cause, which requires the parent to appear in court to explain why they should not be held in contempt.  Repeated violations may justify a modification of the parenting plan to impose restrictions on the violating parent.

Obtaining the return of children who are being wrongfully kept by a parent may involve obtaining a writ from a local court which authorizes the intervention of local law enforcement.

If the parents have a dispute about a certain provision in the parenting agreement or disagree as to it’s meaning, they can mediate the dispute or bring a motion to have the court clarify the provision.

Finalizing an Out-of-Court Agreement

After the parents agree to a parenting plan, it is written and signed by both parents.  The parenting agreement is submitted to the divorce court or family court, where it will be reviewed.  Parenting plans may be temporary until they are finalized and filed with the court. 

At the time you present your proposed final parenting plan to a Judge or Court Commissioner for signature, some states may require that a background check be done on both parents.  This may take additional time before the agreement is finalized.  If you are represented by legal counsel, your attorney can make sure that your parenting plan is presented to the court for approval.

Court Approval Custody Agreement

The court must approve of the parenting plan submitted by the parents before it will become effective.  When the judge reviews the parenting plan, their primary concern will be whether the plan meets the best interests of all the children involved. 

The court may also consider any allegations of domestic abuse, substance abuse or any threats to the child’s safety in determining the custody arrangement.

Once the Family Court accepts and adopts a parenting plan, it becomes a Court Order and must be obeyed.  This means that both parents must abide by all of the terms and conditions of the plan.  One parent cannot unilaterally make changes to the plan without the other parent’s consent.  If the parents disagree on changing the plan, they must go to court to seek a modification of the agreement.  If one parent violates the plan, this does not give the other parent the right to violate the plan in retaliation.  Anyone who violates a court order may be found in contempt of court and fined, and in some cases they may wind up in jail.

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