Child Custody Agreements

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 What is a Child Custody Agreement?

Child custody laws can be complex, and state laws on the subject will vary by jurisdiction. Determining custody rights over a child or children must be done with great care, as such decisions have profound and lasting impacts on the child. 

When determining child custody rights, child custody law places the child’s interests and background first. The child’s needs are placed before any of the parent’s personal preferences. This is known as thechild’s best interest standard”, which is the main standard for child custody cases. Courts will only make child custody decisions if they benefit the child.

A child custody agreement, or child custody contract, is a type of written document which details the guidelines for child custody between the parents of a child or children. These agreements are generally issued in connection with a divorce or separation proceeding. It may contain various instructions regarding:

  • Which parent has primary physical custody of the child
  • Which parent has legal custody of the child, usually the same parent that is granted physical custody;
  • Whether custody will be split equally between the parents, or whether one parent will have more physical custody time; and
  • Visitation schedules for the non-custodial parent.

Additionally, the custody agreement may address various other issues. Examples of this would be child support provisions, and whether or not other parties can assume custody of the child, such as a grandparent or close relative.

What Is Included in a Child Custody Agreement?

As previously mentioned, a child custody agreement letter will detail topics such as custody and visitation schedules. Parents who are able to communicate and negotiate with each other may be able to draft a child custody agreement on their own, therefore avoiding child custody proceedings. Again, each state maintains their own laws regarding child custody and child custody agreements. As such, you should familiarize yourself with the laws of your jurisdiction before taking any action.

A child custody agreement could be considered a form of a parenting plan. Although the needs of each family will differ, the following is generally what is included in a child custody agreement:

  • A classification of the type of custody arrangement each parent has agreed to;
  • Which parent has legal custody, and which parent has physical custody;
  • Parenting time schedules, including visitation schedules, vacations, weekends, and holidays;
  • Details regarding pick-up and drop-offs to and from the parental home;
  • Details regarding important issues such as religion, education, and extracurricular activities; and
  • A clause which outlines how parents may make changes to the child custody arrangement should the need for change arise.

It is important to be as specific as possible when drafting a child custody agreement. This will help reduce the need for modification later on. Additionally, it is important to remember that a court must agree to and certify the agreement, in order for the agreement to be enforceable under state laws. If any part of it is not drafted with the child’s best interests in mind, it is unlikely that the court will do so, and the agreement will need to be redrafted.

How Does One Obtain a Child Custody Agreement?

Generally speaking, a child custody agreement is formulated and approved during the divorce or separation hearings. In other cases, the parents may have already been separated for some time. They may have chosen to create a child custody agreement outside of the court, and without any connection to a divorce or separation lawsuit. 

In such instances, the parents should still submit the custody agreement to a judge in order to have it legally approved, as previously discussed. And, the custody agreement should always be in writing. It is largely unlikely that a court would approve of an oral agreement.

Every state varies in regards to the legal documents required for child custody. Each state has its own set of paperwork, which can be found here. Some examples of what various states require include, but are not limited to:

  • Model parenting agreement;
  • Grandparent visitation forms;
  • Motions for modification; and
  • Parental rights and responsibilities court forms.

Is a Notarized Child Custody Agreement Legal for Child Custody?

It is important to note that having a notarized child custody agreement alone is not enough to prove there is an agreement between two parties as to child custody. However, having a notarized child custody agreement does show that both parents/parties did agree to the child custody arrangement at that time. Thus, the party wishing to not have the notarized agreement accepted as the child custody agreement, will have the burden of demonstrating to the court why it should not be accepted. 

For example, the party could demonstrate that the signature that appears is not theirs, that the document was signed under duress, or that the document was signed under false pretenses. The party may also show that since the signing of the document, there had been domestic violence etc. If the disputing party is unable to demonstrate a good reason as to why the court should adopt the notarized agreement, the court will likely accept the notarized agreement. 

Who Are the Parties Involved in a Child Custody Agreement?

Most child custody agreements refer to the child’s biological parents, as well as the child or children that are to be affected by the agreement. However, this can vary depending on the family arrangements. Other parties who may be mentioned in a child custody agreement might include:

  • Stepparents;
  • Grandparents;
  • Other close relatives; and
  • Adoptive parents, if any.

As such, child custody agreements can generally be tailored to meet the specific needs of the children, as well as the various caretakers that may be involved in the custody arrangement. 

Once again, any custody determinations need to be made with the child’s best interests in mind. If an arrangement is not in the child’s best interest, it is unlikely that that party will be mentioned in the child custody agreement. An example of this would be if a certain adult has been abusive to the child in the past. That person most likely will not be granted any custody privileges in the child custody agreement.

What Happens If a Child Custody Agreement Is Violated?

As child custody agreements are legally enforceable, violations of child custody and visitation orders are treated seriously and can lead to legal consequences. Some common examples of violations may include:

  • A contempt of court order;
  • Loss of visitation or custody privileges; and/or
  • Possible criminal consequences, especially if disobeying the child custody agreement results in harm to the child.

Some of the most common examples of how a child custody agreement may be violated include:

  • Keeping the child with you for a longer visit than what is provided for in the custody or visitation order;
  • Failing to inform the other parent of the child’s whereabouts; 
  • Taking the child on a long trip without asking for approval first;
  • Taking the child outside of state lines, which can lead to federal issues; 
  • Allowing an unauthorized person to care for the child; 
  • Denying the other parent their custody or visitation rights; and/or
  • Various other violations. 

It is advisable not to try to take matters into your own hands. You should first contact the relevant authorities, such as the police, especially if the child has been gone for some time or is missing. It is also advised that you inform the court as soon as possible, once a potential violation has been recognized. This is so you can avoid potentially doing something that might also be a violation. 

Child custody agreements can usually be modified over time in order to better suit the changing needs and abilities of the parents and children involved. 

Do I Need to Hire a Lawyer for a Child Custody Agreement?

If you are drafting a child custody agreement, or are experiencing issues related to a child custody agreement, you should consult with a child custody lawyer in your area. An experienced and local child custody attorney can help you understand your state’s laws and requirements regarding child custody agreements. 

An attorney can also assist in the negotiation and finalizing of the child custody agreement. Having an attorney helps to ensure that the child receives the best arrangement possible for them. Additionally, your attorney can also represent you in court as needed.

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