What’s in a Custody Agreement?

Unless you’re a stepparent who was already in the picture during divorce proceedings, you probably didn’t have any say in how the custody arrangement played out – you’re just stuck dealing with whatever your significant other agreed to.  The trouble is that this arrangement will have a huge impact on your life…unless an opportunity comes along to change it.  If you do have some input on a new agreement, here are a few clauses that don’t necessarily come standard but are good to consider.

(Disclaimer: Nothing here can or should be taken as legal advice; it’s only intended to inform.  For legal advice, please consult a practicing attorney.)

  1. Review Period.  Most custody agreements require a material change in circumstances – meaning that something has to have changed at one or both houses for a judge to consider ordering a child to move, and it has to be significant change.  Some agreements have a clause that states that after X amount of time has passed, the agreement will be up for review.  I’ve heard of mixed success with these clauses; in some cases the judge still wants to see a change in circumstance, or the reviewed agreement is less desirable for one or both parents than the previous one.  I think this is one that is good to have in an initial agreement, to be honest; after a divorce, no one really knows what their lives will be like regarding scheduling, income, etc., and having some time to figure out where the pain points are is beneficial.  Of course, an agreement will come up for review anyway if something changes.  Judges always (try to) order based on what’s best for the child, not what’s best for the adults.
  2. Right of First Refusal.  The right of first refusal essentially says that if the party who has the kid for a period of time can’t be with the kid during that time, they have to offer visitation to the other party.  So, for example, let’s say Max’s mom wants to go out on Saturday night during a weekend that she has him.  She has to call Chris and offer to let him watch Max during the time she’ll be gone before she offers the time to anyone else.  He has the option to say he can or can’t do it.
  3. Right of First Babysitter.  The right of first babysitter says that (in the scenario above) Max’s mom has to offer the time to Chris before she hires a babysitter to watch Max.  Babysitter, in this context, is literally anyone that she would have to pay to have around.  (One might notice that daycares and after-school programs require payment to participate.  Hmm.)  So if a stepmom or grandparent wanted to spend time with the child, it wouldn’t trigger this requirement, whereas it might with the right of first refusal.  Honestly, these both sound really good on paper, but in practice they’re a pain in the butt.  They’re both near impossible to enforce, just because it’s so easy to keep that information from the other parent.  Additionally, while non-compliance technically would be considered contempt of court, there are some kinds of contempt that weigh more heavily than others, and judges don’t consider this to be a huge offense unless something else is going on (alienation, for example, is a huge no-no).
  4. Clauses that Target Specific Potential Upcoming Events.  Okay, this one sounds vague because it’s intended to cover multiple things.  Many parents, when agreeing to an initial custody agreement, are thinking very much about the present: who gets the house, how the bank balance will be split up, what piece of furniture will go with whom.  Kids, unfortunately, are just another thing that’s getting split up.  I was very happy when my husband was able to negotiate a new agreement that looked to the future for Max: things like extraneous medical expenses and extracurriculars were directly addressed in the new agreement.  This meant for us that fewer things are up for interpretation regarding what child support should or should not be used for, and also takes into account that Max is growing and changing every day – which means that he should be able to be involved in activities and events without his parents fighting about who will pay for them.  Of all the different custody agreement additions I’ve mentioned in this post, I think this one is by far the most beneficial for everyone.
  5. Morality Clause.  The morality clause varies in application, but the gist is that the child should be sheltered to a certain extent from the romantic partners of newly single parents.  In some cases it states that no romantic partners are allowed to be around while the parent physically has the child; in some it just says that they’re not allowed to spend the night if the child is in the house.  (This clause is the reason Max’s mom and stepdad got married; they hurried to the courthouse to avoid contempt the day after Chris caught them living together.)  This one is another pain in the butt; given why Chris was able to get custody later, I’m not so sure it was in Max’s best interest for his mom to marry the guy.  More generally, this clause tries to mandate the love lives of single people, which is a little ridiculous.  The extent to which it affects kids to deal with their parents dating is unknown, but it’s a fact of life that people come and go, and I think that trying to curb the ability of single parents to move on from their divorce is a mistake (speaking generally, of course).

Those are just the big ones that I’ve had experience with, but if there are any others you’d like me to address (or if you’ve seen anything completely wacky in an agreement), let me know in the comments below!

(title image courtesy of http://www.allenspence.com/child-custody/temporary-custody-in-north-carolina/)

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