There are as many different possible custody agreements as there are broken families seeking them. There is no “one-size-fits-all” method for achieving one that is meaningful for both parties. Truth be told, it is a rare day when both parents don’t walk away with a custody agreement that doesn’t leave them dissatisfied in some way. However, if your focus remains on the children, both parents can walk away with a sense of having done the right thing by them.
Child custody orders (or agreements) are legal agreements which detail who will get legal and physical custody of the children in the aftermath of a divorce. They are also used if there is a prolonged period of separation or if the children are born of a “less-than-meaningful” relationship. While parents are most commonly the guardians named in such agreements, there are situations whereby others may be charged with the care and custody of children, including grandparents or other family members. They may also have rights to seek custody in certain circumstances.
Custody agreements will consist of two main categories which are then supported by all of the minute details. These details can be short in length or be pages and pages long.
LEGAL CUSTODY: This term refers to the rights and responsibilities associated with making “major” decisions that will affect the children’s lives. They may include education, childcare, healthcare, travel, religion, among other topics which affect the health and welfare of the children. Custody may be shared between parents or it may be assigned solely to one parent. In other cases, there may be shared legal custody but in the event of disagreements, one party is assigned “final decision-making authority” – which, from our viewpoint, constitutes sole legal custody. If neither parent is afforded final decision-making authority, expect disagreements to lead to litigation where a judge will make a final decision on the matter at hand.
PHYSICAL CUSTODY: This term refers to the physical custody of the children and will detail with whom the child will live and spend their time. The typical physical custody arrangement is an unbalanced, joint physical custody arrangement whereby one parent is the primary custodian and has the lion’s share of physical custody of the children. The other parent is often referred to as the “non-custodial parent.” In certain situations, one parent can be granted sole physical custody, which is when one parent has custody of the children full-time. The other joint custody arrangement for which are proponents is a shared-parenting arrangement. This is also referred to as a 50/50 custody or equal-parenting custodial arrangement.
Unless two parents come to an agreement on their own or in 50/50 arrangements where both parents make similar incomes, expect that one parent will be ordered to pay child support for the children.
When parents are going through the divorce process, they have the right to create child custody agreements independently. They may also elicit the assistance of a professional mediator (who may be privately hired or be a court appointed family law professional who facilitates the negotiations of child custody agreements to avoid a custody hearing). If two parents can develop mutually agreeable child custody arrangements, the court may honor it. Sadly, they also may not.
Typically, courts will only approve child custody agreements when they are made in the best interests of the children. Of course, what is in the best interests of the children is often a moving target and subject to the individual’s inherent biases and judgments. Even if the parents can come to an agreement, the judge will have the final discretion over the approval of child custody agreements. If two parents are unable to agree to the terms of child custody agreements, the court will intervene to determine who will receive legal and physical custody of the children, usually via a prolonged and expensive series of custody hearings.
Child custody agreements are never permanent, though it many cases it often seems so. They can be changed by the courts for any number of reasons. The reasons will focus on the needs and impact on the children involved if a parent petitions the court and makes a compelling argument for a modification.
With appropriate knowledge and coaching, you can be better prepared for a better outcome. It is through our experiences and the experiences of many others that we have learned where to look, how to act and react, and how to stay focused on the children in an effort to minimize the costs and time spent preparing for and being inside court.