Key Takeaways
- Court Approval Still Needed: Even informal agreements must be submitted to a judge for approval to become legally binding.
- Two Main Alternative Methods: Parents can reach custody agreements through informal negotiations or mediation without going to court.
- Cost and Time Benefits: These out-of-court methods are usually faster, less expensive, and less stressful than litigation.
- Comprehensive Parenting Plans Required: Plans should cover custody types, visitation schedules, holidays, relocation rules, and child support.
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
Child custody generally falls into two main categories, each with its own legal implications:
1. Physical Custody
This determines where the child lives on a daily basis and which parent provides day-to-day care.
- Joint Physical Custody: The child splits time between both parents, often on a scheduled rotation.
- Sole Physical Custody: The child primarily lives with one parent, while the other may have visitation rights.
2. Legal Custody
Legal custody defines who makes major decisions about the child’s upbringing, such as education, healthcare, and religion.
- Joint Legal Custody: Both parents share decision-making responsibilities, even if the child primarily lives with one parent.
- Sole Legal Custody: One parent holds full authority to make decisions for the child.
3. Other Custody Arrangements
Some families use less common arrangements depending on their circumstances:
- Split Custody: Each parent has full-time custody of different children (typically used in families with multiple children).
- Supervised Custody: One parent can only spend time with the child under supervision, often due to safety or stability concerns.
- Bird’s Nest Custody: The child remains in one home, and the parents rotate in and out according to an agreed schedule. This minimizes disruption to the child’s routine.
Understanding these distinctions is key when building a custody plan that works best for your child’s emotional and physical well-being.
Ways to reach an agreement outside of court
Resolving child custody without going to court is not only possible, it’s often healthier for everyone involved. These alternative methods give parents more control, reduce emotional strain, and usually result in faster, more affordable resolutions.
Here are several effective ways to reach a custody agreement outside of the courtroom:
Arbitration
Arbitration is a private process where a neutral third-party arbitrator hears both parents’ positions and makes a binding decision. It functions similarly to court but is faster, more flexible, and confidential. This method is ideal for parents who want a clear resolution without the delays and public exposure of litigation.
Family Counseling
Working with a licensed family counselor or therapist can help parents communicate more effectively, manage emotional conflicts, and align on parenting priorities. Counseling is especially helpful when lingering tension or miscommunication threatens to derail custody negotiations. Therapists can offer a neutral, child-focused space for productive dialogue.
Collaborative Law
In this approach, each parent hires a specially trained collaborative attorney. The parents, their attorneys, and sometimes additional professionals (like child specialists or financial planners) work together in structured meetings to find a cooperative solution. Everyone involved agrees not to litigate, which encourages compromise and long-term co-parenting success..
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.
Benefits of Reaching a Child Custody Agreement Without a Court
Choosing to resolve custody matters outside of court offers several key advantages, for both parents and children. These alternative methods tend to reduce conflict, preserve relationships, and give families more flexibility in shaping their future.
Some of the main benefits include:
- Lower costs: Mediation, negotiation, or collaborative law are typically far less expensive than court trials, which often involve extended legal fees.
- Faster resolution: Out-of-court agreements can be finalized in weeks rather than months, avoiding the delays of the court system.
- More control: Parents maintain greater say over the outcome, rather than leaving decisions entirely up to a judge.
- Less emotional stress: The private and cooperative nature of these methods helps reduce tension and prevent adversarial dynamics.
- Confidentiality: Proceedings remain private and are not part of the public record, which can protect family privacy.
- Child-centered solutions: Parents can create more personalized parenting plans that meet the specific needs of their children.
By staying out of court, families can focus on creating stable, supportive environments without the strain of litigation.
How to create 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
Even if you’ve reached a full agreement without going to court, your parenting plan must still go through specific legal steps to become enforceable.
Once both parents sign the agreement, it needs to be submitted to a family or divorce court. A judge will review the plan to ensure it serves the best interests of the child. If the court approves it, the agreement becomes legally binding. In most cases, you won’t need to appear in court, especially if everything looks sound and balanced.
To make this process smoother:
- Ensure the plan clearly addresses physical and legal custody, visitation, holidays, and relocation.
- Include dispute resolution methods in case disagreements arise later.
- Double-check compliance with your state’s custody laws and documentation requirements.
- Consider having a family lawyer review the plan before submission to catch any potential issues that might delay approval.
If the judge believes the agreement doesn’t meet the child’s needs, they may request revisions or deny the plan. Legal support at this stage can make a big difference.
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.
