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Can custody issues be decided without going to court?

January 2, 2017 Blog

One of the most daunting tasks of divorce proceedings is the custody agreement. Although a judge must ultimately approve of the resulting agreement, the terms of said agreement can be drawn up through various methods of informal negotiations taking place outside of the courtroom. A fair agreement, one that also tackles the issue of a custodial parent moving out of state, is likely to be deemed as acceptable to the court.

If a cordial relationship can be maintained between the parents at this stressful time, the best method of arriving at an agreement is to draft one together. For instance, perhaps one parent is given physical custody, while the other is given partial custody and visitation rights. If this is the case, some of the issues that must be addressed include where the child will spend their birthday, major holidays, and other special occasions.

Another option is known as Alternative Dispute Resolution (ADR), which includes processes like mediation and Collaborative Family Law. Although an emerging concept in recent years, ADR has proven helpful in resolving custody issues between the parents. Much more casual than an intense courtroom setting, an informal negotiation allows the parents the ability to play an active role in coming to an agreement regarding key topics, instead of surrendering such important decisions to a judge or jury.

The most common type of ADR is mediation, a non-adversarial process in which a mediator meets with the parents with the sole purpose of establishing a fair agreement. Mediation can sometimes allow the parents to avoid a hostile environment and the trauma that oftentimes results from a custody dispute. While the mediator may be able to make a recommendation regarding the agreement, they cannot impose a solution, merely acting as a neutral party. Above all, the goal of a mediator is to help the parents craft an agreement that keeps the child’s best interests at the forefront.

Collaborative Family Law is another type of ADR in which a creative effort is used in order for both parties to come to an agreement, replacing the litigation threats that adversarial lawyers are associated with. Instead of coming to an agreement under conditions of anxiety and stress, the primary goal of Collaborative Family Law is to arrive at an agreement as quickly and painlessly as possible, while ensuring the most satisfying commitment to the agreement for all parties involved.

A major factor that must be taken into consideration when drafting a custody agreement is the parenting schedule. Some parents choose to keep it simple, while others go into great detail; what matters is that a mutual agreement is ultimately reached. For example, a shared parent plan may allow for the child to have continuous or frequent contact with each parent half of the time. Other negotiations may limit the child to contact with one of the parents every other weekend. It’s important to reach an agreement that best suits the needs of each party involved and results in a consistent schedule for the child.

Overall, regardless of how the custody agreement is drawn up, whether through informal negotiation between the parents, mediation, or Collaborative Family Law, the end result is a written agreement finalizing the circumstances that were mutually agreed upon by the parents. Upon filing the custody agreement, an informal court session may follow in which a judge reviews said agreement, determining its fairness and ensuring that the terms do not favor one parent over the other. Once the agreement is made official by a judge, resulting in a binding court order, the parents must adhere to the agreement or otherwise face legal consequences upon failure to do so. If a parent repeatedly violates the agreement, the court might allow for the modification of certain stipulations for the wellbeing of the child, usually imposing restrictions on the violating party.



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