What is a Custody Agreement
A custody agreement is a legal contract that defines how parents will share legal and/or physical custody of their children after divorce. It may be court-ordered or drafted via an uncontested divorce process, and it’s a critical component of child-centered divorce because it allows parents to define their parenting relationships and responsibilities outside of a contentious courtroom setting.
A custody agreement may cover any number of considerations, including:
The courts or divorcing spouses might seek modification to a custody agreement for a variety of reasons, including:
All custody agreements are created with the intent to allow parents to adequately fulfill their responsibilities to their children, but the reality is that circumstances change over time. A custodial parent , for example, might accept a job offer in another state; a non-custodial parent might remarry or begin living with someone else who has her own children and wants all the kids to live together; one parent might have her own mental health issues that require a special living situation for the child; a non-custodial parent might move to a more urban environment that’s ill-suited to raising a child; a child may develop health issues that require modification to a living environment. Perhaps, despite good faith efforts, the parents find the existing arrangement isn’t working as planned.
Whatever the reason, if parents need to modify an existing custody agreement, it can often be done without having to go to court.
Legal Processes for Custody Agreement Modifications
For parents with kids subject to a Custody Agreement either pursuant to a Divorce Judgment or an Order of Custody and Visitation made in the best interests of the child by the Family Part of the Superior Court of New Jersey, it is often necessary to seek modification of such agreement or order on a prospective basis because of changed circumstances affecting the best interests of the children. While this is generally done through the courts, there are alternative "private" means by which to have these agreements modified.
Since court intervention requires notice to the other party, essentially commencing a new action in the Family Part seeking modification of such agreement or order, custody disputes are truly the most contentious and difficult to address through return to court. Private means of resolving custody disputes can have significant advantages to court-oriented proceedings, since the processes are more amicable and allow parents to act as attorneys for the children. This means that parents should consider private processes to resolve their custody disputes before resorting to court. These alternatives to court proceedings, while sometimes requiring court approval, reduce court focus and ultimately, continued involvement of court personnel, in family lives.
Mediation as an Alternative
Mediation is another avenue that can be explored when the parties to a divorce and their attorneys are unable to reach an agreement regarding a material change in their Custody Agreement. Mediation is relatively new in family law litigation. Its goal it to more efficiently settle issues in a non-adversarial atmosphere. The mediator is a third party who guides the parties through a series of conversations/discussions to help them come to an agreement.
The primary purpose of mediation in a custody matter is to assist the parties to reach an agreement that is in the best interest of the minor child(ren). In some cases, the parties may need to return to Court, if the mediation process is not successful. However, courts prefer mediation. Most importantly, should a child custody case require a change, the court strongly favors settlements reached outside of a court hearing. It is important to note that mediation is not recommended for every family, but it can result in a successful resolution.
Creating a New Custody Agreement
The final phase in this process is the actual negotiation and drafting of a new agreement. If you have arrived at the final phase, two important signs are present: (1) you have an agreement with your spouse that you both can live with; and (2) the necessary modifications have been obtained from any administrative agencies (e.g., in Florida, this would be the Department of Revenue OR potentially a new Social Security determination) so that the new terms can be implemented. In drafting the new agreement itself – at least initially – do not worry about minor technical issues in the language. You only need enough detail to clearly express your intentions so that the contact not be misunderstood; otherwise, the goal is to just to make it a work of art. Focus on what issues must be addressed and how they must be addressed. Make sure that all of the new major terms are clearly outlined, and then give GAC (I say this for ease of discussion – I mean you and your spouse) a chance to read through it and let you know if there are any strange or points of confusion. Once you get through this process, you will have a new agreement that better meets the needs of everyone involved. Depending on what new terms are desired, you can either submit it to the court for an order, have it recorded with the court clerk, or leave everything between you and your spouse if you prefer.
Legal Cohesion Outside of Court
Even after the new custody agreement has been negotiated between the parents, there are still a couple of things that need to happen in order to ensure that the modified custodial arrangement is legally binding. Hiring an experienced family law attorney is the first step, as they can review every word of the agreement and make certain that it addresses all relevant concerns. This leads to the next step: documentation. Without a piece of paper that has been reviewed by counsel , signed by both parties, and notarized, there is nothing about the modified arrangement that has binding validity. It may be a verbal agreement, but when one party decides not to comply with the terms, it could lead to arguments that are difficult to settle without going back to court.
State Law Specificities
State laws related to divorce can differ widely, and the ability to modify a custody agreement (or more specifically, to relocate) without going to court is no exception. Indeed, states can provide a variety of restrictions on relocation and rules for modifying a parenting plan and some may even impose a waiting period before such a plan can be modified after it’s rejected. Therefore, anyone with an interest in modifying their child custody agreement must be familiar with how their state approaches custody issues.
A few states that do not require going to court first to modify a parenting plan include:
- Colorado: Parents here can agree to a revised parenting time schedule without having to go to court if the changes are in writing, signed by both parents, and approved by the court.
- Delaware: The court will not approve a modification that would reduce a non-parent’s contact with a child; otherwise, the parents can agree to such a modification without court involvement if they’re willing to submit written explanations of the circumstances.
- Ohio: As long as both parents agree to a change that’s in writing and meets state law requirements, the mere filing of the new agreement with the court is enough—no hearing or judge approval is required.
- South Carolina: Parents can adopt a new schedule and file an agreed upon order with the court without going before a judge as long as the change isn’t part of a divorce or request to relocate out of state.
In contrast, states like New Jersey and Pennsylvania have lengthy periods during which any proposed modification is prohibited unless certain conditions are met.
In New Jersey, parents must be separated for at least 90 days before they can file an uncontested motion to change a visitation order, and there is no guarantee the court will even allow it. Pennsylvania has similar requirements, but there is an exception for the two-year moratorium for parties who have completed a parenting education program both parents must attend.
Practitioners should keep in mind any other transitional laws that might apply, such as Rules 1807-1811 of Tennessee’s Uniform Rules of Practice and Procedure for Family Law Cases in the Courts.
Advantages to Avoiding Court
The advantages of modifying a custody agreement outside of court are numerous and compelling. First and foremost, avoiding the courtroom process can save both parents considerable time and money. Family court appearances inevitably require significant time away from work, stressful preparation, and often substantial legal fees. Even if you are representing yourself, there are costs associated with printing and filing documents (and let’s be candid — the filing costs that the Clerk’s Office charges aren’t exactly user friendly for self-represented litigants).
Second is the emotional benefit. Unless both parents are in total agreement, litigation can be a very negative experience for the children involved in the case . Preparing for trial and attending court hearings can be frustrating and cause significantly more stress than simply modifying an agreement outside of court. Imagine being a child who has no idea why your parents keep showing up at the courthouse. The emotional toll on the children involved can be catastrophic, particularly if they are being asked to appear as witnesses or have opinions on where they want to live.
Finally, litigating custody can cause irreparable harm to the parental relationship. When parents cannot agree on custody issues, it often indicates a deeper chasm in the ability to share parenting responsibilities. Often, custody litigation puts increasing strain on already tenuous co-parenting relationships. Even your extended family can experience the negative effects of litigation, as they are pulled into the process, whether they want to be or not.
