When Parents Divorce: Crafting a Child Custody Agreement

December 30, 2010

A child too often becomes a pawn in a game between separating parents and can suffer more than anyone else involved if not properly protected. Ideally, a child should be kept out of the courtroom to alleviate emotional scarring as a result of his or her parents' legal battles. One means of doing so is by negotiating an out of court child custody agreement.

What Is a Child Custody Agreement?

A "custody agreement" or "parenting agreement" is a written settlement between parents that addresses issues such as living arrangements, visitation rights (for each parent and other family members), and how major decisions (regarding issues such as health care, education and religion) will be made, as well as how disputes about the agreement will be handled.

The agreement usually requires the approval of a judge to ensure it was negotiated in good faith, does not overly favor one parent and that both parents signed it voluntarily. If the judge approves the agreement, it becomes a binding court order in most states. The court can then enforce the agreement if one or both parents violate the terms.

Considerations for a Child Custody Agreement

Before meeting with an attorney, it is important to think through your unique situation so you can effectively discuss your goals and the needs of the child or children involved. What is in the best interest of the child must take precedence over all other aspects of the separation.

Consider the following when deciding what is in the best interests of your child:
- The child's age and gender
- The child's wishes (depending on age of child)
- Stability of the home environment
- The parents' mental and physical health
- The child's ability to interact with extended family members
- Religious and/or cultural needs of the child
- School and community activities
- Concerns of abuse of any kind

Because a custody agreement has long-term effects on a child's temporal, mental and emotional well-being, it must be carefully constructed. Going to an attorney having thought through these and other issues can help ensure that a child remains as healthy and happy as possible in a less than ideal situation.

If the Case Goes to Trial

A negotiated child custody agreement should always be the goal in a custody case, no matter how bitter the relationship between the parents. It is wise to prepare for the worst case scenario, however -- that no agreement can be reached by the parents and the custody decision is left to a judge's discretion.

Family Law specialist Henry Gornbein recommends keeping a detailed journal, with a focus on what is in the best interest of the child. He suggests documenting interactions between the child and the other parent, as well as how much time the recording parent spends with the child and the types of activities involved.

Keeping such a record over several months will be very valuable in court when the judge asks about each parent's commitment to the child. The more specific the record, the more invested and prepared a parent looks. The more invested and prepared the parent looks, the better the impression made on the judge.

Changing Custody Arrangements

As a child grows and parents' lives change (remarriage, changes in employment, etc.), an agreement that was in the child's best interest at one time may no longer serve its purpose. A custody agreement is not written in stone. A court can revisit and change the arrangement to meet the changing needs of the child and the parents.

The goal is to provide stability for the child. A parent suggesting a modification to the custody agreement must show that conditions have substantially changed and the proposed adjustment makes life better for the child. Some courts might require a parent to show that failing to modify the agreement would actually harm the child's well-being.

Whatever is required, the child's best interest remains the focus -- not the desires of the parents.

Conclusion

Child custody need not be a nasty battle. Through mediation and negotiation, parents can come to an agreement that can be in everyone's best interest. Avoiding court proceedings will spare the child from the emotional scars of testifying in court about his or her parents and possibly from being forced to choose sides. Protecting a child from that unpleasant experience is certainly in a child's best interest.

A child custody agreement should be crafted with the help of a knowledgeable family law attorney who can help you meet your needs and goals. If you are contemplating a child custody agreement, start preparing now. Contact an experienced lawyer to discuss your legal options and receive assistance in crafting an agreement.

Article provided by Kent Legal Group
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