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Can I establish a child custody agreement without court?

Posted by LEISA WINTZ | May 09, 2023 | 0 Comments

Mother and father playing with their child

When parents separate or divorce, one of the most critical issues they must resolve is child custody. A child custody agreement outlines how the parents will share responsibility for their children and make decisions about their welfare. This agreement is crucial as it not only impacts the children's lives but also the parents' ability to co-parent effectively. In this blog post, we will go over what is a child custody agreement, and whether it's possible to establish one without court.

What is a child custody agreement?

A child custody agreement, or parenting plan, covers a lot of information, based upon the family's specific needs and situations.  Below are a few basic subjects that could be addressed in a parenting plan:

  • Who has decision-making authority for the child
  • What timesharing (visitation) schedule works for all parties
  • How the parties will handle transportation of the child from one parent to the other when exchanges take place
  • Child support obligations and method of payment
  • Specifics on how holidays, vacations, or school closings are handled which are outside of the regular timesharing schedule
  • How and what expenses are shared by the parents which are not covered in child support guidelines, such as medical expenses not covered by health insurance, extracurricular activities' costs, school supplies, etc.
  • Where the child should go to school

These are just a few things that can be addressed in a parenting plan or custody agreement.  It is always a good idea to have an attorney review any agreement before signing the same to make sure that all possible scenarios are covered.

  • There are many ways to lay out the particulars of what a parenting plan would look like. It could be a 50/50 timesharing plan, where each parent would have 50% of the overnights with the child.  That could translate to these possible scenarios:
  • week on/week off schedule
  • a 4/3 schedule, 4 days one week and 3 days the next week, then rotate
  • a 3/2/2 schedule
  • one parent having the child during the school week and the other having every Friday, Saturday and Sunday nights and make up the lost day in extended summer or holidays

If one of the parents works nights and, therefore, overnights would not work for that parent, our attorneys and mediators can be very creative in how to deal with special circumstances, such as that.

Child custody agreement without court

When parents of a minor child are no longer living together, or are no longer in a personal relationship with each other, whether married or not, a child custody agreement or parenting plan could be entered into without the necessity of any type of court filing. This could be a verbal agreement or a written agreement.  The parties could even attend a mediation to come up with an agreement or have an attorney draw up an agreement to be signed by both parties.

If both parents want to share custody and responsibility of their child without going through the court system while they work out their personal relationship issues, they could hire a mediator who could help both of them come up with a plan that works for everyone. A mediator is a neutral third party who facilitates communication and negotiation between the parents to reach a mutually agreeable custody arrangement. The mediator does not represent either parent, but instead helps the parents develop a parenting plan that meets the needs of the child.

However, if there is no active legal case concerning the child –whether by paternity, child support, or dissolution of marriage, for instance– that agreement alone may not be legally enforceable because there would be no legal vehicle for a judge to enforce it should one of the parties quit complying with the terms of the agreement.

The rule of thumb is that if both parties agree to any changes in an agreed parenting plan, ratified by the court or not, no action is required. But, once they don't agree to any changes, they would default back to the original agreement. If this agreement is done outside of any legal action having been filed with the court, then the only way to address a modification of that original agreement or non-compliance with that agreement is through a court action, such as a divorce or paternity case —if that action would be a paternity case, find here some further information for unmarried fathers or unmarried mothers and what their rights are.

Child custody cases can be complex and emotional, and it's crucial to have the right support and guidance throughout the process. While mediators can provide valuable assistance in helping parents come to a mutually agreeable custody arrangement, there are situations where it's necessary to involve an attorney to protect your rights and the best interests of your child. If you're facing a child custody dispute or need legal advice on any family law matter Family Law is here to help you navigate the legal system and find the best possible outcome for you and your family. Call us today to schedule a consultation.

About the Author

LEISA WINTZ

Leisa Wintz originally began her career as a marriage and family therapist. Ms. Wintz went on to attend law school and started practicing family law in 2009. However, she quickly realized that many family law practices lacked the empathy and compassion she believed were necessary in order to achi...

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