During a divorce, couples with minor children face the issue of custody. However, if you think that determining custody of the child always includes legal battles, we can assure you that it does not always happen.
Many parents can reach mutual child custody agreements without lawyers and multiple court hearings. Moreover, judicial practice shows that both parties can temporarily postpone personal hostility and resentment for the sake of the child’s best interests.
The court accepts and approves a reasonable custody agreement between parents in most cases. However, to prevent the judge from rejecting it, spouses should review the basic information on custody arrangements.
The article will explain the different types of custody arrangements. You will also learn how to make a custody agreement without going to court and what topics the agreement should contain.
What is a Child Custody Agreement?
A child custody agreement or child custody contract is a legally certified written document consisting of guidelines for both parents’ child custody. These agreements are usually used in connection with a divorce or legal separation.
The document may contain instructions regarding:
- Which parent has primary physical custody of the child;
- Which parent has legal custody of the child;
- Will the custody be divided equally between the co-parents, or will one of the parents get more parenting time;
- The visitation schedule of the non-custodial parent; and
- Child support payments.
The Child Custody Act prioritizes the background and interests of the child in determining the custody rights of children. This law is also commonly known as the “child’s best interest standard.” Following it, the court always puts the child’s needs and desires ahead of any parents’ personal preference when making a custody decision.
Spouses can conclude the custody contract in formal and informal negotiations. In the first case, the parents cooperate with lawyers or entrust the case to the court. In the second case, both parties agree on their own or with the help of a third party.
What is a Joint Custody Agreement?
There are two types of joint custody:
- Joint physical custody. In this case, the children spend an equal amount of time with both parents.
- Joint legal custody. Both parents have full authority and responsibility for making decisions for their children.
Joint physical or legal custody works well when:
- Parents are on good terms and can make joint decisions together;
- Parents agree that it is in the best interest of their child;
- The parents live fairly close to each other;
- Neither parent has a history of domestic violence or child abuse; and
- Both parents want to be involved in raising their children.
In joint physical custody, parents can follow any preferred parenting schedule. For example, if a child needs to spend more time with one parent, the other parent may receive extended weekends or have additional midweek visits. Communication with the child can also be carried out through attending various joint events, phone calls, texting, email, etc.
When concluding a joint custody agreement, parents often agree to share joint legal and physical custody. It gives both parents equal rights regarding the methods of raising the child.
What is a Sole Custody Agreement?
Sole custody is also divided into two types:
- The sole physical custody means that the children live with one of the parents and visit the other parent during the assigned time.
- The sole legal custody means that only one parent has the responsibility and authority to make crucial decisions for the children.
The court assigns sole custody to protect the child from emotional and physical harm from one of the parents. The legal reasons for granting this type of custody include abuse, mental illness, abandonment, alcohol or drug addiction. Likewise, parents may choose sole custody if one of the parties needs to move to another state or country.
When documenting an individual custody agreement, the parents usually agree that one of them should have sole legal and physical custody.
How to Obtain a Child Custody Agreement without the Court?
In the case of an uncontested divorce, the parents on friendly terms can conclude a written custody agreement on their own. However, they still need to submit papers to the family court to approve the document.
The paperwork for child custody may vary from state to state. In addition to a written contract, the court may require grandparent visitation forms, parental responsibilities and rights forms, motions for modification, etc.
Parents can resolve child custody matters informally, only between themselves, or through alternative dispute resolution (ADR), involving a neutral third party to help decide.
The ADR process permits spouses to resolve disputes without court proceedings and/or a lawyer. The most common types of alternative dispute resolution are mediation and collaborative family law.
Child Custody Mediation
Mediation is a negotiation process when a neutral third party boosts conciliation, compromise, or settlement of custody cases.
Custody mediation can help parents avoid stressful, hostile, and costly litigation. It also allows parents to follow the best interests of their children.
The primary role of the mediated third party is to help parents find a compromise solution for a custody agreement. In some states, the judge may ask the mediator for a recommendation if spouses have not found a mutual understanding for the custody case.
The benefits of mediation include the following:
- improved communication with co-parents, which often leads to better cooperation between both parties for the best interests of the children;
- absence of lawyers and expert witnesses during negotiations; and
- settlement of custody agreements in a short time (on average about one to two weeks).
The mediation process consists of the following steps:
- The initial meeting of the mediator with the parents;
- Identifying the problem;
- Discussion and proposal of compromise solutions; and
- Preparing and signing the agreement.
The length of the mediation depends on many factors, such as the number of issues to be resolved and the willingness of both parties to cooperate. It is also worth noting that the mediator’s recommendations are optional. The agreement will acquire legal power only after the parents sign the contract and the court order.
Collaborative Family Law
Collaborative Family Law is the other common way of obtaining an out-of-court agreement between parents. It is also called a collaborative practice because, unlike mediation, both parents work with their lawyers to resolve legal issues without involving a third party.
The collaborative law practice also allows parents to work with financial and social workers. The experts will cooperate with lawyers to find the optimal solution in the child’s best interests.
Under Family Law, parents should consider ADR to resolve custody issues without going to court. However, there are cases when ADR is not suitable:
- one parent is afraid of the other parent because of domestic violence;
- a parent has a substance abuse or severe mental health problems;
Collaborative practice is voluntary. It means that each parent agrees to settle the child custody issue voluntarily.
The main goal of lawyers is to help parents make mindful decisions without stress and scandal. They also contribute to:
- focusing on solutions and finding the best option for parties involved;
- signing custody agreements based on the child’s safety interests, parental rights, and state law;
- supporting open and honest conversation between parents; and
- preparation of the necessary documents and information required to obtain a custody order.
What is a Parenting Plan?
A custody arrangement or parenting plan is a written agreement that includes a parenting schedule and responsibilities. Therefore, any characterization of child custody will result in a parenting plan.
Parental plans may differ depending on the case specifics. During joint legal custody, some parents can describe the children’s lives and the upbringing process in detail, while others are limited to a brief description of the visitations.
Mutual agreement in creating the parental plan helps parents reduce the number of conflicts and misunderstandings that may arise in the future. Also, partners should create the parenting agreement following the child’s best interests. Otherwise, the court may not approve it.
What Should Be Included in the Parenting Plan?
The parental agreement should contain:
- Parenting provisions;
- Custody and visitation schedule;
- Child support information
- Anything else that will help the parents to raise the child.
Parenting provisions are the rules that parents should follow when raising a child. Parenting plans regarding the parent’s responsibilities may include:
- Will one parent have sole legal custody, or will the parents share legal custody and have full authority to make decisions for the child;
- Information about the child’s religious affiliation;
- How the parents will exchange the child;
- How the parents will transport the child to the meetings;
- How parents will decide on dental and medical care for their child;
- Information about the training and education of the child;
- How parents can make an arrangement change.
The custody and visitation schedule points out where and when the child spends time with each parent. The full parenting schedule includes:
- The place of residence and visitation schedule;
- Holidays and vacations schedule;
- Vacation time;
- Exceptional cases (one-time events that affect the regular schedule.)
The details of child support depend on the support formula in each state. However, parents can independently agree on the amount and period of payments.
A custody and visitation agreement without involving a court will help spouses save money and create conditions that work best for them. It will also allow them to learn how to work as a team for the welfare of their child.