Going to court isn’t the only way to produce a child custody agreement. If you and your spouse have an amicable relationship, you may be able to write your own agreement that works best for your family and puts your child’s best interests above everything else. After all, you know your family better than anyone else does.
While you may need a lawyer to help with this, that doesn’t mean a trial (and the time, emotional stress and money involved) is inevitable. Let this article guide you in thinking through your options for reaching a child custody agreement without court involvement so you can decide if this is something you want to pursue.
What is a child custody agreement?
A child custody agreement is the legal agreement that you and your spouse will eventually reach (whether through court proceedings or other methods) that specifies how you’ll co-parent your children after your divorce.
A custody agreement may cover things like:
- Which parent the child will live with and for what percentage of the time
- What sort of visitation or parenting rights the other parent will have
- Whether the parents will have joint custody of their child, meaning the parenting responsibilities will be shared
- Child support
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Get startedTypes of child custody
Before we get too far, it’s important to note that there are different types of child custody:
- Physical custody refers to the child’s residence. Parents may decide to share physical custody, or one may be awarded sole physical custody. In the event that sole custody is awarded, that parent is known as the custodial parent.
- Legal custody refers to the way parental decisions are approached post-divorce. It determines which parent is responsible for making decisions about their child’s education, religion and healthcare. (An exception is that if a child is in need of emergency medical attention, unless the court determines otherwise, whichever parent they are with at that moment is empowered to make any necessary healthcare decisions to address the issue, whether or not the parent has legal custody.) This form of custody can also be shared.
Ways to reach an agreement outside of court
There are a couple of ways to reach an agreement about both forms of child custody outside of a courtroom.
Informal negotiations
If you and your spouse feel capable of respectfully discussing this issue together and ultimately deciding the terms of your custody on your own, you may consider informal negotiations. These might look like meetings between the two of you that are dedicated to discussing your desired child custody terms.
Sometimes each spouse decides to invite a lawyer to accompany them at their negotiations to provide support and help steer the conversation so that it’s productive. Or each spouse may choose to talk separately with their lawyer during the process to assist with their negotiations.
Mediation
Another common legal process for reaching a custody agreement is called mediation. This method uses a neutral party (called a mediator) to help guide spouses in confidential discussions about the terms of their divorce. Mediators are usually family law attorneys or other professionals trained in family therapy and contracts law. Although you don’t need a lawyer for mediation, it can be beneficial to have one help craft an agreement that ultimately achieves the results you desire.
Some mediations begin with the parents in the same room before breaking into separate rooms. This helps the mediator understand both sides.
Often, the parent who filed the divorce submits a proposed child custody plan to the mediator, but sometimes each side submits a proposed plan.
The mediator bounces back and forth between the private meeting rooms, acting as the go-between. They present the first iteration of the plan to the other spouse (and their lawyer, if they have one), discuss it with them, then bring their revision back to the first spouse. This process repeats until the spouses find an agreeable middle ground.
Mediation tends to be cheaper than hiring lawyers to argue and present evidence on your behalf in a courtroom, because it usually takes less time. Mediation is also typically less stressful than going to trial.
If you’re unable to reach an agreement on all of the issues through mediation, you may wind up going to court in the end. Mediation can still be a great first resort because you may find common ground on at least a few terms of your divorce.
Creating a parenting plan
When a no-fault divorce involves children, the parents can create a child custody agreement (also called a parenting plan) during informal negotiations or mediation. This comprehensive plan addresses all aspects of co-parenting any shared minor-aged children.
Some states require a parenting plan when a couple divorces, but they’re a good idea regardless. Parenting plans provide the terms for the family to live by post-divorce and can ensure that both parents are on the same page moving forward.
A few basic points that every parenting plan should include are:
- Schedules for where children will live during events such as holidays and birthdays
- Who has legal and physical custody over what matters
- A plan for what happens if one parent chooses to relocate, including the amount of notice they must give the other, which parent will pay for the child’s travel and how the child’s living schedule will be affected
How to finalize an out-of-court custody agreement
Once the spouses agree on their parenting plan, each signs it. Then it’s sent to family court or divorce court for a judge’s review. If the judge signs off, the plan is considered official. An in-court, in-person hearing usually isn’t required.
If a court doesn’t believe the agreed parenting plan is in the best interest of the child, they may reject it or revise it. It can be helpful to have a lawyer help you through that process.
How a lawyer can help
Lawyers can help with many different aspects of creating child custody agreements. For instance, they can help you draft what you’d like to get out of your agreement during mediation. They can also argue your case if you’re ultimately unable to reach an agreement with your spouse on your own without going to court.
Trials are notoriously expensive, and the main reason for that is lawyer’s fees. Attorneys typically charge by the hour, which means that it usually costs money every time you meet with them or call them. At Marble, we offer quality affordable legal care with flat rates and flexible payment plans that cater to your financial needs. If you’re feeling stressed about reaching out to a lawyer, call us. We can help guide you through this emotionally taxing, confusing process.
