Child custody agreement without court – is that really a good idea?

Most parents, in order to save expenses, simply enter into a child custody agreement without court intervention or approval. Couples who amicably separate can usually agree between themselves on the terms of the custody for their children at that particular time. So, they find a template from the internet, modify it to suit their situation, and sign it. This agreement is a contract and constitutes a binding obligation between the parties. However, because the agreement has not been approved by the court, in case one party violates it, they cannot simply go to court to request enforcement.

The usual remedy for non-observance of a regular contract would be to request for specific performance of the contract with the court, which requires trial and can be costly down the line. The court, however, will decline to hear a specific performance case on a child custody agreement because these agreements are not within its subject matter jurisdiction unless it is part of a divorce proceeding. For this reason, it’s always better to do child custody agreements right the first time.

When parents separate amicably, they are able to discuss the details of their parenting plan without the intervention of a lawyer or the court. The parenting plan includes a child custody agreement which contains provisions on custody and visitation schedule, parenting, child support information, and all other items that are relevant to raising a child that the parents would like to include. It should also contain a provision on how to modify the current child custody agreement.

Custody and visitation schedule provisions include a weekly schedule, a holiday schedule, vacation time, and special events. Parenting provisions include decisions on whether one or both parents would have legal custody (the authority to make major decisions in the child’s life), information about the religious upbringing, schooling, and education, medical and dental insurance, and a method of handling disputes, in case there are any disagreements on above matters. Child support information will discuss how much each one’s share is in raising the child and how, to whom, and when it will be paid. Child support amounts are generally governed by state guidelines. In New York, the New York Family Court Act §§ 413 and 413-a provides the guidelines in the computation of child support. Parents, however, can choose to pay a different amount, depending on their agreement. The court will generally approve this agreement, for as long as it is for the best interest of the child. Other matters relevant to raising a child could include co-parenting provisions, rules on parents not saying negative things about each other to the children, who will drop off and pick up the child during exchanges, whether grandparents can exercise rights of custody and visitation when one parent is away, when new partners can be introduced to the children, and how the parents will communicate about the child.

When, at that moment that parents separate, they are on friendly terms, parents can agree on a child custody agreement without court approval. This, however, lacks foresight. There may come a time when the relationship will turn adversarial or hostile, especially when parents don’t agree on certain matters. Maybe parents starts dating, and other parent doesn’t like the idea. Maybe one parent is relocating to another state, and the other parent is opposed to being far away from his children. At this point, it will be difficult to enforce a child custody agreement that has not been approved by the court.

Enforcing a child custody agreement

As a general rule, an agreement is binding between parties. When two parties sign an agreement, their consent to the provisions is obtained, and they agree to be bound by the obligations stated therein. In New York, when a contract is violated, the usual recourse is to request for specific performance or rescission plus damages with the Supreme Court.

However, in child custody agreements, subject matter jurisdiction lies with the divorce or family court. The civil court will not entertain a child custody agreement dispute unless it is part of the divorce proceedings. The divorce or family court will not enforce a child custody agreement that has not been approved by court order. Even modifications have to be approved by a court order in order to be enforceable.

For these reasons, when executing a child custody agreement, it is better to have it approved by the court. This makes the agreement easier to enforce, especially when there will be disagreements on implementation in the future.

For example, John and Martha separated amicably and executed between themselves a child custody agreement, where they agreed that their child, William, would spend weekdays with Martha and weekends with John. They did not have this agreement approved by the court. After two years, John met a new girl. During weekends, he would take his son William and his new girlfriend together on short road trips within the state so that they could get to know each other and spend time together. John and Martha’s child custody agreement, because they made it themselves, did not include a provision on dating and introducing new partners to their child. Martha apparently did not like this new situation and stopped sharing William with John on weekends. John tried calling Martha, but Martha refused to accept his calls. Martha refused to answer the door to give their son, William, to John during weekends. John tried to go to William’s school, but Martha would also be waiting to pick up William and would not share William with John. John did not like to make a scene in school grounds. Exasperated, John went to the court to enforce the child custody agreement. Can the court enforce the agreement? No, because there is no court order approving the child custody agreement. Can John subsequently submit the child custody agreement for approval with the court? Submitting a child custody agreement to the court requires the current consent of both parties. If Martha disputes this agreement, John and Martha would have to agree on new terms that can be mutually submitted to the court for approval.

Suppose instead that the child custody agreement was submitted to the court for approval, can John enforce the child custody agreement and force Martha to turn over William to John during weekends? Yes. In this case, the child custody agreement has been approved by court. In essence, the child support agreement is a court order, and continuous refusal to obey a court order can be punished by contempt. John can file a custody or visitation enforcement petition with the divorce or family court, attaching a copy of the custody order issued by the court.

Suppose further that the original child custody agreement was approved by the court. Subsequently, John and Martha executed another agreement modifying the terms, where John would have William during weekdays, while Martha would have William during weekends. This modification was not approved by the court. In case Martha refuses to comply with the modification, can this be enforced? No. Because modifications to the original custody agreement also have to be approved by the court in order to be enforceable. In this case, only the original custody agreement is enforceable.

Legal fees

Most parents think that putting together a child custody agreement without court intervention on their own, especially when they are amicable and can agree on the terms, would save them in legal expenses. However, having a lawyer look over the child custody agreement and making sure it is enforceable by the court might have an initial cost now, but will save the parents more legal expenses in the future in case there are disagreements.

Lawyers generally charge an hourly rate in cases. However, when both parents have already agreed on the terms of their custody and parenting provisions, lawyers can charge a flat rate. It is only when the issues are contentious will lawyers charge an hourly rate because it makes the matters more complicated and would require more time from the lawyers.

If you and your co-parent have already agreed on a child custody agreement, ensure that you do it right the first time. Have a child custody lawyer look into it to ensure your rights are protected and that all possible future scenarios have been contemplated in the agreement. The child custody lawyer can file it with the court for approval so that it may be enforceable in the future.

If you have child custody issues or need assistance in family matters, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].