A child custody agreement is an agreement between parents as to which parent will have physical and legal custody of a child. A parent who has physical custody of a child is the parent with whom the child resides. A parent who has legal custody of a child is the parent with responsibility for making life decisions about the child. These decisions include decisions about medical treatment, schooling, and religious upbringing.
Parents may decide amongst themselves which parents have which rights. The product of this decision is known as a child custody agreement. While the agreement can be reached without court intervention or assistance, a judge must approve the agreement for the agreement to be of legal effect. In other words, unless a judge approves the agreement, neither parent can attempt to enforce the terms of the agreement against the other.
In addition, a judge may refuse to approve certain terms of the agreement, if the judge believes that enforcement of these provisions is not in the best interests of the child.
What are Some of the Other Ways to Arrange a Child Custody Arrangement Outside of Court?
Parents may work out a parenting plan amongst themselves, without court involvement. A parenting plan is a document, written and signed by both parents, that outlines each parent’s respective child custody responsibilities. Parenting plans address matters such as visitation rights, whether (and when) a child may spend time with a non-custodial parent during a holiday, or which parent is to drive a child to or from school on a given day. Parenting plans may also address when relatives, such as aunts and uncles and grandparents, may visit the child.
Parents may not be able to reach agreement on a parenting plan by themselves. In such an event, the parents may rely on their respective attorneys to reach an agreement. The parents, along with their attorneys, may meet to discuss how an agreement is to be worded, with the attorneys working out the details of the agreement.
The parents, with the attorney present, may communicate with each other as to basic terms, and permit the attorneys to work out more complex terms. When parents meet, through their attorneys, to reach an agreement, the parents can “take the lead” in coming up with the terms. They may also use the assistance of the attorneys, or the attorneys may “take the lead” in coming up with the terms that express their clients’ wishes.
There is no one required form or type of parenting plan or child custody agreement. Therefore, parents and their attorneys have latitude in deciding what to include in the agreement. Not every conceivable detail related to custody need be in the agreement.
For example, the parents may agree to a visitation schedule that allows the non-custodial parent to visit on one weekday, twice a month. The parents need not specify the exact date of the month or day of the week that this visitation is to take place. If a dispute develops over the issue, the parents are free to amend the agreement or to make the agreement more specific.
Is Mediation an Option for Arranging Child Custody Outside of Court?
A mediator is a neutral third party who can assist parents and their attorneys in working out the terms of a child custody agreement. The role of a mediator is not to take sides in a dispute. Rather, the mediator’s job is to facilitate a settlement that is mutually satisfactory to both parties. During the mediation process, the parents, and if they choose, their attorneys are present. The mediator typically makes some kind of opening statement setting forth the issues in dispute. The mediator then typically works with one side, relaying that side’s position to the other side. This process of “shuttling” back and forth is continued until an agreement is reached.
Mediation offers several distinct advantages over litigation. Mediation is typically less expensive and shorter than court proceedings. Mediators do not impose a decision on the parties. Parties are not obligated to reach an agreement. If the parties do reach an agreement during the mediation, the parties then put the terms of the agreement in writing and sign the agreement.
As is the case with an agreement developed by parents without mediator assistance, for the agreement to be legally enforceable, a judge must approve of the agreement. If and when a judge approves of the terms of the agreement, the agreement becomes binding on both parties. If either party seeks to have one or more terms of the agreement modified at a later date, the parties may work with the mediator to come up with amended language. Any changes to the language of the original document must be approved by the judge for the new agreement to be effective.
Is Arbitration an Option for Arranging Child Custody Outside of Court?
Arbitration is an alternative to mediation. Arbitration is permitted in many states and serves as an alternative to court resolution. The process of arbitration involves the parents selecting an arbitrator that is mutually acceptable. The arbitrator conducts a hearing regarding how custody and parenting issues should be resolved. Arbitrators, unlike mediators, render decisions. An arbitrator renders their decision on the basis of facts submitted by each parent. Arbitrators are authorized to make rulings over disputed facts.
When the arbitrator has concluded the hearing, the arbitrator renders a decision on the issues presented by the parties. This decision is generally binding, meaning that a parent may not seek to have the decision set aside by a judge. If the parents wish to retain the right to appeal the arbitrator’s decision to a judge, they must usually negotiate to have that right before the arbitration proceedings begin.
Arbitration is generally more formal than mediation. An arbitrator may call witnesses, and may permit parties or their attorneys to cross-examine opposing witnesses. The arbitrator may also ask questions of witnesses. The arbitrator may consider evidence, including past statements and actions of the parties, as well as documents that may be relevant to resolution of an issue.
Parents or their attorneys may object to the introduction of evidence; generally, however, the rules of evidence that apply in a court proceeding are more relaxed in an arbitration. This means that evidence that cannot be admitted in a court proceeding, such as hearsay, may be admitted during an arbitration proceeding.
Issues may arise during or after an arbitration as to whether a party freely decided to arbitrate. One parent may claim that their decision to arbitrate was coerced, or that the parent was not aware that by agreeing to arbitrate, the parent forfeited the right to have issues decided by a judge. Therefore, parties who seek to arbitrate must enter into a written arbitration agreement.
This agreement must be signed by each party and must provide that each party, by agreeing to arbitrate, has freely and knowingly waived the right to have a judge review the decision of the arbitrator. There are rare circumstances under which a judge may review a decision of the arbitrator. If, for example, if an arbitration decision is procured by fraud, or the decision was the result of an arbitrator’s misconduct or bias, a party may file an application for an order with a judge. In the application, the party requests that the arbitrator’s decision be set aside, or be given no effect.
Arbitration is less costly than litigation, but typically is more costly than mediation. Arbitrators who are attorneys that concentrate in a particular area of dispute resolution, such as arbitration proceedings, may command a higher fee than a mediator. Arbitration, since it is more formal than mediation, generally takes more time than mediation.
Do I Need an Attorney for Help With Child Custody Matters?
If you are considering whether to enter a child custody agreement, you should contact a child custody lawyer. An experienced child custody lawyer near you can advise and assist with preparation of the agreement. The child custody lawyer can also assist you with submitting the agreement for court approval.
