What Is a Custody Agreement?
A custody agreement per Family Code Section 3004 is an agreement between both parents or involved parties to establish the custodial arrangements for their children after separation. Generally, these agreements will outline each party’s respective parental rights and responsibilities concerning the health, safety, education, care, and control of their children.
There are two types of custody arrangements that parents or people involved with children can agree to: legal custody and physical custody. Legal custody is defined in Family Code Section 3002 as "the right and responsibility to make decisions relating to the health, education, and welfare of a child." Physical custody is defined as "the right and responsibility to live with and care for the child." In other words, legal custody boils down to who has the authority to make decisions on the child’s behalf and physical custody is defined as who the child gets to live with. The agreement can also section out the authority for certain things to one parent, or split the authority regarding those issues.
Legal custody can be joint to both parties (this is most often the case), to one party, or may be split in half where one party has legal custody on certain issues (e.g. medical) and the other party has legal custody on other issues (e.g. education). There could even be an option as well to split legal custody into four categories, with one party having legal custody on only medical issues, and the other having legal custody on education, extracurricular activities , and travel. This would obviously require a more complex agreement.
Physical custody can also be joint or to one party. If the parties are going to share and alternate their physical custody of the children, then they can specifically lay out the exact schedule under the agreement. If one party is going to have the children a majority of the time, then the agreement will standardly have the party with less time amounting to not more than 50% of the time.
Occasionally other items may be contained in the agreement, such as provisions for move-away issues, medical insurance coverage and division of medical costs, and child support provisions. The agreement will also contain a waiver due to the other party failing to comply with the terms of the agreement. The waiver will specify that they can be held in contempt by the court if they fail to follow the agreement, and that this contempt can lead to jail time. A primary purpose for including this provision is to help enforce visitation issues when necessary. Although, one party cannot currently hold the other in contempt for child support issues, because the courts will only allow for the parties to file a contempt action if there is already a court order for child support. This means that if there is no support order, the aggrieved party would need to seek a court order to establish child support payments and then wait until the other party has violated that order, before they can file a contempt action. However, the agreed upon provision should state that it will be a basis for contempt regardless of child support having been ordered.
How a Custody Agreement Lawyer Can Help
A custody agreement lawyer’s responsibility is to carry out client wishes in accordance with the rules of civil procedure, family law rules, and case law. The aim is to develop a process for divorce, separation, caregiver consent, or parenting plan that is fair to all parties involved, and that looks out for the best interests of the child first and foremost. In the instance that no attorney has been hired by either party, the court rules require all parties to do their best where childcare is concerned. They even make attempts to send parties to court-appointed mediators in order to develop a parenting plan that is in the best interests of the child – but which all parties will also sign off on. You know what is best for your child, and you may not want to attend court meetings to get to where you already are in terms of childcare. Working with an attorney who understands your needs will alleviate a great deal of stress, as will working with a custody agreement lawyer. Both of you should have interest in doing what is best for your child, and both should exercise reasonable care, courtesy, and civility when developing the plan.
The Most Important Factors When Drafting a Custody Agreement
When it comes to custody agreements, there are several critical elements that you need to be concerned with. Obviously, in an ideal situation both parties will work together to reach their own agreement regarding visitation and who makes decisions concerning the children. But sometimes joint custody, sometimes referred to as shared custody, is impractical or simply impossible. When that happens, one parent may have sole custody of the child and raise him or her, while the other parent has rights to visitation. Sometimes, however, visitation rights can be expanded to include overnight stays or multiple days of visitation per week. In addition to visitation, decisions rights are also very important in a custody agreement. From a medical perspective, who has final say in determining if the child needs braces or any other type of orthodontia? If the child has broken his or her arm, who gets to decide how long to wait until the cast comes off and a new one replaces it? On the flip side, what if the other parent wants to pursue some alternative or "holistic" treatment for the arm instead of using the cast or doing surgery? These types of scenarios might seem improbable at the moment, but they do happen from time to time. A lawyer can help you determine the legal strategies that are available for your particular crowd. Depending on the circumstances it may or may not be possible to work toward an agreement that is best for you and your ex-spouse.
Why You Should Hire a Custody Agreement Lawyer
Navigating the complex legal waters of child custody arrangements can be an arduous process, fraught with challenges and for many, overwhelming difficulties. This is where having a custody agreement lawyer comes in, providing clarity and direction while streamlining the often-laborious legal process involved in determining custodial rights and responsibilities. A custody agreement lawyer can ensure that the arrangement not only satisfies the parent’s current needs for their child but also anticipates reasonable future developments. The lawyer can help craft an agreement that is both legally compliant and in the best interests of the child, making it as streamlined and conflict-free as possible. The 2016 census found that 12.7 per cent of all Canadians who have children experience some sort of parenting arrangements, often requiring a custody agreement. However , the majority of these parents have little to no knowledge about what the arrangements may entail, and are unprepared for the often arduous process of developing a custody agreement with their former partners. Experts encouragingly predict that the number of young parents aged 25 to 34 is expected to increase in the coming years, meaning that there is an increasing need for specialist lawyers with expertise in child custody arrangements who are able to provide individuals with necessary advice, guidance and support. A custody agreement lawyer can help increase the odds of a timely, feasible arrangement that takes into account the child’s best interest. Before signing, read over any documents carefully and highlight anything you do not understand. Your lawyer can give you an explanation and may even suggest alternatives or ways to amend the agreement in order to make it valid and enforceable.
Common Disputes in Custody Agreements
There are potential challenges to a custody agreement that the parties must face and resolve. There can be any number of disputes or disagreements between parents. The point is to secure a custody resolution that works for the entire family. One common issue is scheduling. A holiday to one parent may not be of any value to the other father. The two parents may be in disagreement over the specifics of a holiday.
There are many ways to solve problems like these. If your ex refuses to work things out with you, you can always request that a judge do this. It is the court’s job to make sure that the child has a positive outcome, and if that means changing the custody arrangement if the parents can’t agree on how to do it, then the court will intervene. A skilled family law attorney can ensure that preferable arrangements are ultimately achieved.
In some cases, parents simply forget to update a custody order after their child turns 18. If a child is a senior in high school, for example, and is contemplating spending his or her last summer break living with a new stepparent in another state, then this issue will require court intervention. Family law attorneys for divorce and child custody can help with situations that arise concerning adult children too.
If a parent cannot pay support, relocation problems can result. These situations can be resolved. A child moving to New York may not be eligible for health insurance under an ex-spouse’s policy, for example. A child getting ready to go to college may need substantial aid from a parent, but the other parent simply doesn’t have it to give. These are parenting issues above and beyond the time-sharing elements that are common.
Custody arrangements can be difficult to understand, and there are many issues that must be worked out with respect to child care and parenting. The good news is that child custody agreements can be modified over time to meet the needs of a child as he or she grows. Courts recognize that life events dictate changes in lifestyles and that these can impact child care needs as well.
Custody Agreements FAQ
What happens if there are disputes about the custodial agreement?
The custodial agreement that you and your ex-sign will include instructions on how to deal with potential disputes. The written plan should also include information about how to get help from a third-party mediator. Third-party mediators are especially helpful when you and your ex cannot agree on key issues.
What are the processes for modification?
Again, your custodial agreement should include instructions for how to modify it. In many cases, you may be able to make some changes on your own. For example , you may be able to change visitation days that conflict with holidays or family vacations. Other modifications may require court approval. For example, your abilities to make certain changes without approval may be affected if your case was previously litigated, not settled.
What are the steps if one party is violating the agreement?
Your written agreement should again provide instructions for what to do if one party is not complying with the agreement. In many cases, you’ll need to go back to court to have a judge enforce the agreement. This can take time, and the other parent may violate it in the meantime. If no emergency exists, judges are often reluctant to address custody violations.