Three Things You Should Never Include in a Custody Agreement

It is through my own early experiences and the interactions with clients and others that I’ve learned so much about what not to do when it comes to putting together a child custody plan. Fortunately, all of those experiences are compiled to help you avoid experiencing them yourself. The better prepared that you are, the greater the probability of a better outcome for you and the children. This effort will also help reduce the number of times you have to return to family court.

Let’s look at three examples of what not to include in your child custody plan. Better explained – let’s explore three examples how to avoid addressing child custody issues in an ineffective way.

Overly-Specific Phone Contact Requirements

They say the road to hell is paved with good intentions. The pot-holes along the road are filled with overly-specific phone contact requirements. The road may seem smooth at first, but rest assured that those pot-holes are coming back.

Many people have struggled with this vague clause that usually reads:

“Reasonable telephone contact shall be allowed and assured by each custodial parent for the other during their non-custodial periods.”

It may be the only clause where we suggest it be left vague and with good reason. What can happen with some examples of overly-specific language?

“Monday, Wednesday, and Friday at 7:00PM.”

This means that every Monday, Wednesday, and Friday at 7:00PM, you can have nothing planned, be doing nothing else, and must always have the children available for the duration of that child custody order. If you don’t think a high conflict ex will take you to court for interfering with his/her phone contact – think again.

“The parent with custody must allow the children to call back within four hours of a message being left for them by the non-custodial parent.”

What if you’re not home within four hours of a message being left by the non-custodial parent? What happens if you were out at a family event and you want to take the sleeping children from the car straight to bed? If you don’t think a high conflict ex will take you to court for interfering with his/her phone contact – think again.

There are many different scenarios that we’ve seen or experienced first-hand. These are just a few. The bottom line is that you can remain in contact with your children with a vague calling agreement by using low contact and giving as good as you get. If your ex allows you to talk to the children once a week while they have custody, you do the same when you have custody. Your ex will soon learn that if they want cooperation, they will have to cooperate themselves. I can hear you thinking to yourself, “Well isn’t that exceedingly childish?”  I understand if you’re saying to yourself, “I only have my child 6-10 days per month, s/he’ll come out on top of that one.”  Not really.  I’m believe that your high conflict ex is like most others and they probably call excessively on the few days per month you might have the children.  The hostile parent will want to be able to maintain contact when the children are with you.

A phone call agreement that is too specific, however well-intentioned it is, can quickly become a legal rope around your neck, so it’s better to work through the pain of a few weeks of no calls.

Morality Clauses

More often than not, morality clauses are used as a means of control by a hostile ex-partner. Morality clauses should be avoided due to the fact they are quite difficult to enforce. They don’t offer children the “protection” that is often used as leverage to have it added to a child custody agreement. Instead, morality clauses serve simply as an invitation to many unhappy returns to family court. Let’s explore the written clause and how it can be circumvented.

“The parents are prohibited from having unrelated overnight guests of the opposite sex in the home when the children are in their custody.”

  • What about overnight guests of the same sex?
  • What about the mom’s step-father? What about dad’s step-mother?
  • Have the children now been prohibited from having a slumber party?

When you’re dealing with a high-conflict ex, you do have to truly dig deep into the child custody plan. You have to make a determination of what is important enough to have legal power over your life for the foreseeable future. Once you have made those determinations, you have to ask these types of questions of the specific child custody issue. You do this in order to discover how best to word the child custody clause to minimize the opportunities for future conflict and litigation.

“As Agreed Upon By Both Parties”

As a stand-alone phrase, this is gasoline thrown on the high-conflict fire. When your ex-wife or ex-husband is a family court frequent flier, this clause is their gold club card. There are ways to utilize these words in a somewhat longer clause and have a reasonable expectation that it will be legally enforceable while at the same time avoiding the ever-present “I never agreed to that” reply. Two words: “in writing” – but there is more to be learned regarding how to wield the words “as agreed upon by both parties.” Never, ever allow the stand-alone phrase to infiltrate your child custody order.

  • A high-conflict ex will rarely, if ever, agree to anything unless it benefits them entirely.
  • Without an agreement being in writing and deemed irrevocable absent extraordinary circumstances, verbal agreements should be treated as if they never existed. Your high-conflict ex will do just that.

For today’s homework, now that you’ve seen a couple of problems that can be created by a poorly worded child custody agreement, write down a list of things you currently have a problem with about your child custody situation or agreement, as well as problems that may occur in the future. Remember that as your children grow, their needs will change, and your child custody agreement needs to be written in a way to handle those changes or you’ll be back in court trying to get amendment after amendment after adjustment after update after revision. Think about all of these categories as you make your list:

  • School
  • Holidays
  • Vacations
  • Physical Exchanges
  • Extracurricular Activities
  • Healthcare
  • Childcare
  • Transportation
  • Religion
  • Phone Contact

When you go through the exercise of brainstorming your list of  child custody issues, come up with a couple of proposals to handle each situation if possible. Of course, this is after you prioritize the issues in order of most important to least important. The time you invest now, preparing a draft child custody plan on your own, will be both money in your pocket and time available to see to its implementation.

Here are a couple of other articles to help you out:

Morality Clauses and Their Implications
Communicating in a High Conflict Divorce

We’ll see you again in a few days for our next lesson on what you should definitely include in your child custody agreement plan.