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Four Steps to Create a Child Custody Modification Agreement

Parents are encouraged to communicate and co-parent in the aftermath of a divorce. Children are best served when parents are able to maintain open lines of communication with one another and work jointly or together on raising the children. There may come a time at which parents desire to change an existing custody order. Ideally, they are able to reach an agreement between themselves regarding the modification of child custody. There are four primary steps associated with agreeing to modify an existing child custody order:

  • Understand the application of the best interests of a child standard
  • Cover all the bases - physical custody, legal custody, and parenting time
  • Put your agreement in writing
  • New child custody agreement must be approved by court
Understand the Application of the Best Interests of a Child Standard

The best interests of a child standard applies no matter the manner in which custody is being altered or modified. The best interest of the child standard is used when a court orders a change of custody as well as when parents reach an agreement between themselves to alter or amend an existing custodial arrangement.

What is in the best interests of a child is ascertained on a case-by-case basis. If parents agree to a custody modification, that change must be consistent with the best interests of a child. For example, if the parents agree to one parent having sole custody and the other parent having no visitation, such an arrangement will be suspect on its surface in the eyes of the court. Generally speaking, such a custodial arrangement is not deemed to be in the best interests of a child.

The reality is that most agreed custodial alterations are not that extreme. Thus, custody modification agreements reached between parents typically are approved by the court. In the end, the court operates on the fair presumption that parents normally do not take steps that are against the best interests of their children. Having said that, a court nonetheless examines an agreed change to custody (or parenting time) to assure that it doesn't work against the best interests of a child.

Cover All the Bases - Physical Custody, Legal Custody, and Parenting Time

If parents reach an agreement to modify custody, they need to make sure three primary issues are addressed in the arrangement. The agreement needs to set forth the arrangements as to physical or residential custody, legal custody, and parenting time or visitation. These all need to be addressed even if only one aspect is modified. If approved by the court, the agreement becomes the standing order of the court as to these matters.

Put Your Agreement in Writing

An agreement to alter, amend, or modify child custody must be in writing. Some sort of "handshake deal" between parents is of no legal effect. A verbal agreement to change custody in no way alters the existing order of the court.

The laws in each state dictate how custody agreement is to be drafted. As is discussed in a moment, this reality points to the need to consider seriously engaging legal counsel in a situation in which an agreed change of custody is sought.

New Child Custody Agreement Must be Approved by Court

As noted a moment ago, the court must approve a change of custody agreement negotiated or reached between the parents. Certainly, courts endorse the idea of parents solving issues directly between themselves. However, in all states, the court retains jurisdiction over child custody issues until a minor reached majority or adulthood.

Even if you and the other parent have reached an agreement modifying child custody, utilizing the services of an attorney remains advisable. You will want to make certain that the child custody agreement submitted to the court meets legal muster. You don't want to have created an agreement with some type of legal defect that comes back to haunt you at a future date.

Finally, you need to bear in mind that an attorney can only represent you or the other parent. For this reason, any time a major post-divorce change is being made, even when the former spouses generally are in agreement, each party is wise to consult with legal counsel to ensure that their rights and interests appropriately are protected. If you have any questions about child custody, contact the Law Offices of Peter Van Aulen at 201-845-700 for a free consultation.

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