Tuesday, March 10, 2015

3 Reasons Why Your Custody Agreement Should Be Through A Court Oder

Too many individuals come to me with child custody issues that have arisen from an agreement.  The parents separated, agreed on how custody would look and left it at that.  They might have even put their agreement in writing.  While agreeing on child custody and visitation arrangements is typically a great thing and in the best interests of the child, here's why that is not enough:

1.  Child custody can be adjusted anytime there is a material change of circumstances.

Child custody can always be amended if there is a material change of circumstances.  What is a material change of circumstance?  It is subjective but it could be, the child has now become school age, one of the parents has moved, a health issue has arisen.  

If you use the court system to formalize your agreement, you can ensure the court knows the timing of that agreement (i.e. if dad says well I moved after the previous agreement, but the last court date shows it was before the previous agreement, that may not be considered a material change of circumstances).  

It will be the responsibility of the party asking for the change to prove that there is a material change of circumstances. 

2.  Agreements, not formalized through court orders, are less enforceable.  

Agreements are enforceable as a contract, assuming they meet the requirements to be considered a contract.  Court orders are enforceable through the courts as the court enforcing their own order.  This means the court has more power to enforce the agreement and can fine or potentially hold the party in contempt for not complying.  The court cannot hold a person in contempt of court for simply violating an agreement.  

3.  Your agreement may be invalid or void.  

Going through the court and making it a valid court order means that it will be valid and enforceable.  Depending on the laws of your particular state, a verbal agreement or even a written agreement not notarized may not be sufficient to be a valid agreement.  With something as important as your children, you want to make sure that all legal requirements are met to ensure it is valid and legal.  

Now, here's the good news.  Going through the courts does not have to mean a fight.  If you and the other parent agree, you can go to the courthouse and file an agreed order.  As always, I strongly suggest you consult with an attorney about your specific circumstances before moving forward.  

If you are involved in a custody dispute and would like an initial consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.