The term child custody refers to the guardianship rights granted to a parent. It is used to describe the legal and decision making relationship between the custodial parent and the child. When determining child custody rights, the court will consider a number of factors, but first and foremost they will consider the child’s best interests.
Some of the common factors that courts will consider include:
- Each parent’s relationship with the child, as well as their history of interacting with the child;
- Whether one parent has been acting as the child’s primary caregiver;
- The child’s background and their adjustment to their home, neighborhood, school, etc.;
- The mental and physical health of the child as well as both of the parents;
- Whether the child has any special needs, such as physically or mentally; and
- The wishes of the parents, as well as the wishes of the child if they are old enough to express a preference.
A child custody agreement is a type of written document that clarifies the guidelines for child custody between the parents. These guidelines typically include:
- Which parent has primary physical custody of the child;
- Which parent has been granted legal custody (this is generally the same parent that has primary physical custody rights);
- Whether custody is to be split the parents, or one parent will have more physical custody time; and
- Visitation schedules for the noncustodial parent.
In general, child custody agreements must be approved by a judge in order to be legal and enforceable under state laws. Additionally, they are usually issued during divorce or separation hearings. However, not all child custody agreements are worked in a courtroom by a judge. Although a judge will need to approve the child custody agreement, there are other ways of arranging the agreement outside of court before bringing to a judge for approval.
Any determination of child custody will result in a parenting plan. A parenting plan is a type of agreement between parents that details the schedule, duties, and responsibilities of each parent in relation to their child. The parenting plan also provides information concerning parental rights and the rights of other parties that may be involved in the child’s life, such as grandparents or stepparents.
These plans are composed by either the court, the parents themselves, or the attorneys involved in the parents’ divorce or separation. Parenting plans may be as complex or as simple as the parties involved desire, as there is no set form to parenting plans. The plan must be drafted and signed by both parents, then presented to the court for approval.
Another way to arrange a child custody agreement outside of court is through direct discussion and communication. Parents are encouraged to work out the matter on their own as much as possible. Thus, if both parties involved are still on speaking terms and it is safe to do so, they should try discussing the issue directly. This removes a lot of the procedure from the process, and allows both parties to immediately discuss what is most important.
This is also the lowest cost option, as it does not involve the time of an attorney, and requires less time in court aside from submitting the agreement for approval. However, it is still recommended that an attorney be involved before signing a parenting plan.
Related to direct discussion is collaboration. Collaboration is an alternative to direct discussion in that it involves collaboration between both parents through their attorneys. Attorneys are a powerful asset in obtaining the best arrangement for the child as well as their client because of their knowledge and experience. Collaboration still reduces the amount of procedure involved in the process. However, collaboration still requires significant legal work, so fees may be significantly higher.
Mediation is the process in which a neutral third party communicates between two conflicting parties. The third party, known as a mediator, promotes reconciliation, compromise, or settlement. Mediators will work between the two parents, as well as their attorneys, in order to help them come to an agreement regarding child custody and a parenting plan. It is important to note that nothing said or done by the mediator has any binding force. The resulting agreement will only be effective if both parties sign the agreement. Further, the court must approve of the resulting agreement.
The mediation option keeps court involvement in the process to a minimum, which decreases costs. Additionally, mediation typically lasts a shorter amount of time than a trial, and is incredibly useful in cases that are particularly sensitive or personal. However, the mediator must be paid in addition to the attorneys involved, which makes this option more costly than the others previously discussed. Regardless of which method is used to determine child custody arrangements outside of court, both parents must sign the agreement. Finally, the agreement must be approved by the court.
It is important to consult with a skilled and knowledgeable child custody attorney before signing any child custody agreements. An experienced child custody attorney can ensure that the custody agreement follows your state’s laws, and is considerate of both your child’s best interests and your own. Lastly, they can help you present the custody arrangement to the court for approval.