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Who Gets the Kids: Creating and Modifying Child Custody Agreements

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Last revision: June 26th, 2019
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Category: Marriage, Divorce and Family
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Even for parents who are no longer married or romantically involved, child custody and visitation are complicated issues only if both parents want custody of the children. If the parents can agree on who gets custody, the judge will almost always accept their decision without second-guessing it. This guide discusses all of the considerations parents should be mindful of when creating or modifying a Child Custody Agreement. To find a comprehensive guide that discusses other issues related to a divorce involving children, such as child support, this website also has a How to Handle Kids in a Divorce guide that covers those topics.

Issues surrounding children can often be the most contentious and difficult to resolve during the process of divorce or separation. Too often, children become the pawns, with one parent using them to hurt the other parent. It is vital to the welfare of the children that their parents put aside hostile feelings toward one another and address the issues using a collaborative approach rather than a contentious one.

Determining Custody

When parents separate or divorce, the term "custody" serves as shorthand for "who lives with and cares for the children" under the ensuing divorce or child custody agreement. In most states, custody is split into two types:

  • Physical custody -- the responsibility of actually taking care of the children day to day
  • Legal custody -- making decisions that affect the interests of the children, such as medical, educational, and religious decisions

Generally, the person who has physical custody of the child is known as the "custodial parent," while the parent who does not have physical custody of the child is known as the "non-custodial parent." In situations where both parents have physical custody, the parent with whom the child spends more time is the default custodial parent. If the child spends equal time living with both parents, then both are known as custodial parents.

Custody of the children used to be routinely awarded to the mother. The law presumed that the mother was in a better position to take care of the children. The father could get custody only if he could prove serious charges of immorality, child abuse, or neglect against the mother. Today, judges focus on the welfare of the child: is it in the best interests of the child to award custody to the mother, father, or both? Courts frequently award at least some aspects of custody to both parents. This is called joint custody, and it usually takes one of three forms:

  • Joint physical custody-- children spend a relatively equal amount of time with each parent
  • Joint legal custody-- medical, educational, religious, and other major decisions about the children are shared
  • Both joint physical and legal custody

In every state, courts are willing to allow parents to share joint legal custody, but about half of states are reluctant to order joint physical custody unless both parents agree to it, and they appear to be sufficiently able to communicate and cooperate with each other to make it work. In some states, courts automatically award joint legal custody unless the children's best interests -- or a parent's health or safety -- would be compromised by doing so.

Best interests of the child standard

Judges frequently use what is known as the "best interests of the child standard" to make decisions related to children, such as those related to child custody and visitation. Maintaining a stable home environment is at the top of the judge's list in deciding what is in the child's best interest. A divorce or separation is a major disruption in a child's life and the judge will do everything possible to minimize that disruption. With younger children, this may mean awarding custody to the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships. For this reason, the parent who keeps the family home usually gets primary custody of the children, especially if the children have lived there for several years and attend school in the area. If no house is involved, or if the house will be sold, the judge will take into consideration how far from the area either parent plans on moving.

Many other factors are considered when determining the best interests of the child, including:

  • Mental and physical health of the parents
  • Child's age, sex, and mental and physical health
  • Lifestyle and habits of the parents, including whether the child is exposed to secondhand smoke, drug or alcohol abuse, or whether there is any history of child abuse
  • Love and emotional ties between the parents and the child, as well as the parent's ability to give the child guidance
  • Parents' ability to provide the child with food, shelter, clothing, and medical care
  • Child's established living pattern (school, home, community, friends, religious institution)
  • Quality of available schools
  • Child's preference, if the child is old enough to weigh the alternatives, usually around 12 years old
  • Ability and willingness of the parent to foster healthy communication and contact between the child and the other parent

In creating a Child Custody Agreement, parents have a great deal of leeway to determine for themselves what makes the most sense for their children and their co-parenting arrangement. However, if the parents then try to turn their Custody Agreement into a formalized court order or, later on down the line, one parent chooses to challenge the Agreement in court, a judge will then apply this best interests of the child standard. If the judge finds the agreement lacking and disagrees that the Custody Agreement is in the best interests of the child, they have the power and discretion to alter the Agreement as they see fit to better meet those standards. Therefore, parents should keep this standard in mind during their negotiations and the creation of a Child Custody Agreement if they hope to have that Agreement hold up in court.

Visitation Rights

If a parent does not have custody of their children, they are usually able to establish reasonable visitation rights within the Child Custody Agreement and/or the ensuing court order. A judge will only step in to make a determination about visitation if the parties are not able to decide visitation for themselves. Visitation rights may consist of one night a week, every other weekend, one month during summers, and/or alternating major holidays (for example, one parent gets the children for Thanksgiving one year and then for Christmas the next), or any other combination of parenting time spent with either parent.

To establish visitation rights, parents will often incorporate a parenting agreement into a Divorce Agreement or a Child Custody Agreement. This parenting agreement is a detailed, written agreement between parents that describes how they will deal with visitation, holiday schedules, vacation, schooling, and other issues related to their child. More and more, courts are encouraging the use of parenting agreements during otherwise contentious divorce or child custody proceedings. If couples are able to discuss and agree upon how to deal with issues affecting their children -- rather than having a judge make an independent ruling on those issues -- they are more likely to stick to the terms of the agreement.

In most states, it is a crime to take a child from their parent with the intent to interfere with that parent's physical custody of the child, even if the taker also has custody rights. This crime is commonly referred to as "custodial interference." In most states, the parent deprived of custody may sue the taker for damages and get help from the police to have the child returned. If a parent without physical custody, who may or may not have visitation rights, removes a child from -- or refuses to return a child to -- the parent with physical custody, it is considered kidnapping or child concealment in addition to custodial interference. Federal and state laws have been passed to prosecute and punish parents guilty of this type of kidnapping, which is a felony in over 40 states.

Changing a Custody or Visitation Arrangement

After an agreement is established that determines custody and visitation, parents may agree to modify the custody or visitation terms. This modified agreement, also called a "stipulated modification", may be made without court approval. If one parent later reneges on the agreement, however, the other person may not be able to enforce it unless the court has approved the modification. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child. Generally, courts will modify an existing order if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability and helps prevent the court from becoming burdened with frequent modification requests.

One of the most common reasons for changing a custody arrangement is a geographic move. If a custodial parent makes a move that will seriously disrupt the stability of the child's life, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order. Custody orders frequently prevent the custodial parent from moving out of the country or state unless the court's permission is first obtained. If the custodial parent is moving for a legitimate reason, such as a new job, the judge will generally allow it. If the move to a new and faraway state seems to be primarily motivated by keeping the noncustodial parent from seeing the children, the request to move the children to a new state will be denied. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contact with their children. If no agreement can be reached between the parents, the court's next step depends on the state. Courts in some states will permit the move unless the other parent can prove that the children will be adversely affected. In other states, the court will repeat the best interests of the child examination, exploring factors such as switching schools and distance from relatives, and then make a decision about how to modify the Child Custody Agreement.

The other most common reason for changing a custody arrangement is a change in lifestyle. If substantial changes in a parent's lifestyle threaten or harm the children, the other parent can often succeed in changing custody or visitation rights. If, for example, a custodial parent begins working at night and leaving a five-year-old child alone during their overnight shifts, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or abusing drugs, the custodial parent may file a request for modification of the visitation order. They could request, for example, that visits occur only when the parent is sober or in the presence of another adult. What is considered a lifestyle change that would be detrimental enough to warrant a change in custody or visitation rights varies tremendously depending on the state and judge involved in the case.

Final Takeaways

Divorce or separation can be especially stressful when children are involved. However, by collaboratively addressing the following key issues related to child custody and visitation, parents can do their best to separate without causing too much disruption to their children's lives while ensuring that their Child Custody Agreement covers all the bases and is well made so it can hold up in court:

  • Child custody
    • custody involves both physical custody, or where the child will live, and legal custody, or who will make decisions related to raising the child, which can each be separate or joint
    • judges determine custody by using a "best interests of the child standard," looking at what set up will cause the least stress and disruption to the child
    • a custody agreement can be changed using a "stipulated modification" if the parents agree or a court determines a geographic move or change in lifestyle justifies an alteration of the current arrangement
  • Visitation
    • a parent who does not have custody may establish visitation rights
    • visitation can be arranged using a parenting agreement that is incorporated into the divorce agreement or a separate child custody agreement

About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.

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