An Overview of Custody Agreements
Custody agreements are legal contracts that parents or caregivers can enter to define how they will share parental responsibilities and time with a child. It essentially becomes the blueprint by which parents will carry out their co-parenting relationship until the child reaches adulthood. When custody agreements are court-ordered, the parents, the children, and potentially, other stakeholders (such as grandparents, stepparents, etc.) must follow the terms outlined to the letter.
Most custody agreements contain provisions for parenting time and legal custody, which is shared decision making on big-picture issues (such as education). These decisions can include anything from what school or daycare the child will attend to health care and religious upbringing.
In most cases , parents should attempt to draft a custody agreement in good faith that aims to avoid drawn-out, costly future disputes. For example, some parents may have experienced lengthy, hard-fought divorces that they do not want to put their child through. For others, their circumstances do not allow them to endure a contentious divorce process and they prefer to settle their matters amicably and without airing "dirty laundry." In other cases, the parents may have moved on with their lives, but their current life and/or work situations do not allow for the traditional co-parenting schedule. There are many reasons that divorced parents may take a sensible approach to co-parenting that benefits their children and themselves.
The Advantages of Settling Out of Court
Formulating a custody agreement outside of court is the best way for parents to determine who will have the biggest impact on their child’s life. There are many benefits of avoiding court proceedings, which mean that parents should consider mediation and collaborative law as ways of resolving their custody disputes. In particular, these processes can help parents avoid significant costs, help them keep their personal matters private and give them the chance to remain in control of the decision making.
The costs associated with going to court can add up to thousands of dollars quickly. There are numerous fees that must be paid, from filing fees to other clerical expenses, as well as the money you and your spouse will have to pay for legal representation. When you sit down with your spouse and consider different options, rather than involving a third party such as a judge, you can save money by avoiding these fees.
When you go to court, the judge makes the decisions that will impact your life. It becomes easy for parents to lose sight of what is best for their children when they are so focused on arguing their own case. By working together on a custody agreement, parents can determine what is best for their children without having to focus on winning a court case.
The proceedings of a family law court are always public. Not only is this frustrating for parents, but it can be damaging to children to have to go through that type of situation. By choosing to resolve custody issues outside of court, media will be unable to get their hands on information or make headlines out of the decision.
How to Craft Your Own Custody Agreement
To construct a Florida child custody agreement without going to court, you must follow these steps to map out your PCI. Both parents in the couple must be in agreement about the terms of the agreement document before finalizing anything. This is a process that takes anywhere between a few days to a few weeks.
- The Parent’s Child Interview (PCI) – the first step is usually discussing the desired terms of the agreement with the child and getting their wishes in writing. Since they are old enough to have their own opinions, this step ensures that they agree with what the parents are planning to do in terms of visitation. The child is interviewed about their preferences, which are then entered into a PCI form.
- Preparation of parenting plan – after the PCI, it is time to prepare a draft parenting plan. Both parents need to create their own parenting plans. Before comparing the two plans, they should have another discussion of their preferences and priorities, since they may have new ideas based on their current thinking.
- Negotiation and revision – when both parents have prepared their plans, they exchange copies and compare them. At this point, they need to be flexible, as other people may have different views and ideas from themselves. They talk it over again and see if they can come to a compromise. With negotiation, the concept is to try to avoid going back and forth, so parents should be willing to accept some changes to their draft, while keeping the things that are most important as-is.
- Child Support – the next step is to decide on whether or not to arrange child support. Parents should check the family judgment forms on the requirements for each type of child support and spend time discussing whether child support is necessary. They also need to determine who will be responsible for things such as transportation costs, day care, health insurance and medical needs. Parents can see what their child’s needs are, and decide who will be responsible for what.
- Creating the document – when parents have agreed on the individual points, they can create the document and sign it.
- Notarization and filing – after the document has been finished, you should take it to a notary public (many banks have them at the ready) and sign it. The notary will sign and stamp the document, completing the agreement that must be submitted to the court within 45 days of being signed.
The Key Components of an Effective Custody Agreement
While the needs of each family vary, at a minimum, every custody agreement should include the following:
Parenting Schedule
There are two components to the parenting schedule – (1) the time (or the "when" of the parenting schedule) and (2) the transportation arrangements for the children.
It is also important to agree on how any future discretion regarding the parenting schedule is to be exercised, for example, if one parent wishes to change the parenting schedule day for that week. Agreeing on this in advance will save time and money down the road.
Decision Making
Decision making refers to the authority parents have over long-term decisions and can be set up in one of two ways:
Communication and Information
We recommend that parents discuss the importance of having telephone communication with the child/ren as well as in person communication and how that is to work with the other parent. Additionally, the parents should agree to share information pertaining to the child/ren’s life. We have a specific section on each custody and parenting time order that addresses the importance of parents sharing information. We also provide a list of information that is typically shared between parents, including:
A non-residential parent should be given the right of first refusal to care for the children when the other parent desires to hire a babysitter or have someone spend significant time with the children. For example, if you are going to go out with friends or run errands for an extended period of time, a non-residential parent has the option to take care of the children before a babysitter comes to your home. It is important to note that this is only the right of first refusal and not the right of first care. For example, if the children are ill or have an unplanned need, it is the responsibility of the custodial parent to care for the children before he or she has to obtain the other parent’s consent to arrange alternate care.
Resources to Help You Draft an Agreement
One tool for drafting a comprehensive custody agreement is mediation. Mediation is a process whereby a neutral third-party reviews the facts, the parties, and the issues in their dispute, and provide assistance to the parties in resolving all or part of their disagreement.
Mediators will commonly offer advice on the myriad of important issues in a custody setting. This includes the terms of parenting time schedules, holiday parenting time schedules, and the amount of child support that might be appropriate in their circumstance. This service may involve nothing more than the provision of basic forms for the parties to use in memorializing their agreement, or it might involve the provision of more sophisticated legal planning tools.
Beyond services offered by mediators, there are a number of forms and templates available for use when drafting custody agreements. For example, the American Bar Association’s Family Law website (https://www.americanbar.org/groups/family_law/resources/) has a number of legal documents that might be of assistance. The ABA even has templates specifically for Establishing a Parent Coordinator Process (PC) . This document is very specific to parenting time matters, but it does contain a number of suggested provisions that can be used for any number of purposes in a custody agreement.
One other resource for drafting custody agreements are online family law platforms. There are now a few websites designed specifically for the development of low-cost, self-service family law solutions. Two of those websites are myvirtual.lawyer and Monosail. A short review and sift through both resources shows them to be potentially valuable for any parent seeking to draft a low cost, self-serve custody agreement.
Another potential resource for drafting your own custody agreement is Pavan, P.A. While not a website per se, there are several forms on the Pavan website that underscore the potential types and content of documents that can be included in a custody agreement. Specifically, the Petitions for Child Support or Parenting Plan are examples of the type of documents that can be incorporated into final agreements. In many instances, a skilled lawyer may incorporate these types of pleadings into your final custody agreement.
Legal Basics and Support Services
It’s useful to look at the circumstances under which an agreement written outside of a courtroom will be enforced. When parties create a parenting plan, the agreement will often be enforceable in at least one way: if both parents sign off on it, a court can simply ‘ratify’ the agreement without requiring the parties to appear. Alternatively, the agreement may not be enforceable unless the parties present it before a judge.
You may be wondering what the difference is between these two situations. If you and your ex are simply arranging parenting time on your own, your agreement likely needs to be reviewed by a judge before it is enforceable. But in some jurisdictions, judges will actually prefer that parties make a parenting plan on their own, as opposed to having it done through the custody courts.
Be sure to understand the preferences of the court in your area. Check with your own library or courthouse, or consult with a family law attorney. You may also want to familiarize yourself with the custody laws in your area to educate yourself on how custody decisions are made—particularly if you are engaging in mediation.
When You Need Professional Assistance
When you should involve professionals:
We may need to get a little help from the people who do this for a living. It might be a family law attorney, a mediator or a family counselor. A friend of mine in Seattle does private parenting plan facilitation. That means she will help a couple create a parenting plan. She also has worked with couples who have a plan already but need help to renegotiate it when a move or other significant change is required.
Regardless of what part of the family dynamic is creating the need for a professional, it may be the only way to get an agreement. One person is refusing to talk to the other. They really are not open to reconciliation and negotiation.
You can go to just about any professional group, like the American Association of Marriage and Family Therapists, and find a listing of people trained in mediation. But how do you choose someone? Here are some tips:
Any number of family therapists are listed.
You may encounter people who say they are "divorce coaches" and they will help you with your document. But that may or may not be true. Coaching is often associated with helping athletes or corporate executives to help them deal with their feelings. But what you really want is someone in the legal end of it who is familiar with the legal requirements and restraints of your locality. Coach or not, if you cannot agree on all terms of the parenting plan, you are likely to end up in mediation at the Family Court Services meeting with a judge. Financially, it may be well worth spending the money to arrive at an agreement you can live with.
Keeping Agreement Updated and Modifying
It is common for the circumstances of your life to change over time. That is the nature of life. For that reason, custody agreements should include a method for making a modification of the agreement without going through a court process. The proper way to do this is to include in the agreement a clause that states the parties agree to modify the terms when circumstances make a change appropriate, without going back to court. In such circumstances , the parties should at least confer with their attorneys to document the change in the form of a consent order or stipulation and complete the proper forms to properly notify the child support enforcement agency of the change. In doing so, the agency will have the change in the file and will notify the accounting department to automatically implement the change, so that the child support money continues to flow without interruption.