You might be surprised to learn that most states allow you to create a child custody agreement without court. It’s true. Parents can use informal agreements, mediation, and other forms of alternative dispute resolution to create parenting plans and child custody arrangements that serve the best interests of their children.
Now, as a practicing attorney, I have had the privilege of walking alongside my clients as they face some of the most difficult seasons of their lives. Divorce, child custody, and parenting arrangements can be some of the most challenging issues to deal with.
But you don’t have to lose everything. You can build a future that is stable, loving, and safe for your children. Best of all, it is possible to resolve some of these complex issues without going through a messy courtroom battle. I know this because I have helped my own clients achieve favorable outcomes without attending a single court hearing.
Now, I won’t lie to you – it’s not always easy. It can be hard to come to an agreement when trust is broken and your relationship is not on the best terms. That said, it is entirely possible.
Better yet, when you can work toward an amicable resolution without court involvement, it is often the path that offers the most healing and long-lasting relief to families.
Starting the process: Communication and mediation
The first step in creating a custody agreement outside of court is establishing open, honest communication. I always encourage my clients to set aside anger and focus all their energy on a positive future for their children.
In one case, I was honored to represent a mother of five children who was separating from her long-term partner. She was angry, hurt, and confused. She wanted to talk about all the harm and pain she had endured. That pain is real and should be addressed, but I assured this mother that we needed to set it aside for now and focus on her children’s future. That’s when I suggested mediation.
Mediation can be incredibly helpful. In mediation, a neutral third-party mediator – sometimes a retired judge or a trained attorney – helps to facilitate conversations and find middle ground.
This process is often much less expensive than a full-blown courtroom proceeding. It can also be less emotionally draining than going to trial. In my experience, mediation can help parties form an agreement that will work for your child as they grow and mature.
If serious issues like alcohol dependency are involved, part of your agreement can even include things like random alcohol testing or monitoring programs, like BACtrack View. Provisions like these can help reassure both parents that your children’s safety will be protected. I’ve seen these tools work wonders. It can help to rebuild trust between co-parents. It can also serve to support a parent on their sobriety journey by offering accountability.
Understanding the most common custody arrangements
Most families I work with end up choosing some form of joint custody arrangement. Joint custody does not guarantee a perfect 50/50 split of time for each parent. In fact, I always encourage my clients to focus on the quality of time with your children, rather than the quantity of time with your children.
In some situations it may work best to have one parent take primary physical custody of the children, but ensure that both parents share legal custody. This type of situation will ensure that both parents have the right to make major parenting decisions for the child, even if the child is primarily living with only one of the parents.
There are many different forms of custodial arrangements, including parents that alternate weeks with their children, dividing time between the school year and summer vacation, or dividing time more frequently in a way that works best for your co-parenting situation, your work schedule, and your children’s needs.
If addiction has been a concern for one parent in the past, you may need to agree to certain conditions. Conditions like supervised visitation or counseling appointments are usually temporary, but they can help to build trust in your co-parenting situation. So, if your ex-partner or ex-spouse suggests supervised visitation or counseling, try your best not to be prideful.
I reminded one father recently that supervised visitation was an opportunity to showcase all the hard work he had been putting in to restore his life and his relationships. Try to remember that this is not a punishment. Instead, it is a protection for your child and a strong motivator to stay on your recovery path.
Is a notarized custody agreement legally enforceable?
Sometimes, people will visit my office with a parenting plan or custody agreement that they have put together on their own. They want to know whether their agreement will be legally enforceable if they notarize it.
Unfortunately, the answer will oftentimes depend on the language of your agreement and the specific rules of your state. All this to say, you may not always be able to notarize an agreement with your co-parent and be done with it.
A notarized agreement does show that both parents are willing parties to the contract. However, in many states, you may still need a judge to approve your agreement to make it legally binding and enforceable. If you don’t get a judge’s approval, and one parent stops following the agreement, you could have no legal remedy.
For this reason, even if my clients are able to stay out of courtroom battle, I always submit parenting plans and custody agreements for court approval. But don’t worry too much about getting a judge’s approval though.
As long as your plan is fair, reasonable, and protects your child’s best interests, it is typically a straightforward process.
The biggest mistakes people make in custody battles (and how to avoid them)
One of the most challenging aspects of family law can be cleaning up after your client’s mistakes. My job would be much simpler if my clients would consult with me before they make decisions that might impact their custody arrangements.
Over the years, I’ve seen certain mistakes come up over and over. These mistakes are avoidable – so don’t jeopardize your co-parenting situation by doing any of the following:
- Bad-mouthing the other parent in front of your children: Judges, mediators, and opposing attorneys frown heavily on this type of behavior. Focus on your children, not your anger, and do your best to speak about the other parent in the best possible terms.
- Ignoring or downplaying substance use issues: If you’re working to get sober, that’s admirable. I’m proud to report that many of my clients who once struggled with alcohol are now living clean and sober lives. During a custody battle, it’s crucial that you show (not just say) that you’re taking sobriety seriously. This can’t just be lip-service. Do your absolute best to participate in recommended programs, attend meetings, and document your progress.
- Refusing to cooperate: When you are inflexible or hostile, it makes you look like you’re not putting your child’s needs first. Be reasonable and polite. This can make a big difference in your case.
- Failing to get legal advice: Even if you choose to create a child custody agreement without court involvement, it is important to seek legal advice from a family law attorney. You don’t have to retain an attorney for a full-blown trial. However, a lawyer can help you draft an agreement, work with a mediator, or negotiate with your co-parent to resolve your issues in a way that protects you and your children.
I had to remind a father recently that the goal in these proceedings is not to “win.” You aren’t trying to make the other parent look bad. You shouldn’t dig your heels in and refuse to be reasonable. This type of behavior will only harm your children in the long-term.
Always remember that you are trying to put together a “winning” agreement for your children, not for yourself.
Creating a child support agreement without court involvement
Like custody arrangements, you can also reach agreements about child support without going to court. Keep in mind, you may still need court approval for your child support agreement to make it enforceable.
Remember that mother of five children I mentioned before? One of her goals was to establish a child support order that helped her support all her children. I was able to help her accomplish this goal without going to court.
You and your co-parent can do the same. All you need to do is calculate a fair amount of support based on your states’ child support guidelines, your incomes, and the needs of your children. There are even online child support calculators for each state that can help you estimate an appropriate amount of child support for your situation. As long as your agreement seems fair and in the best interest of your children, most judges will approve it.
If you’re working toward sobriety and financial stability, it’s totally acceptable to be honest about that. You can level with your co-parent about what you can afford and make arrangements to increase or adjust your support over time. With open and honest communication, you can craft an agreement that is fair and appropriate. You just need to show that you are willing to support your children in every way possible.
At the end of the day, every situation is unique. No matter the situation, I tell every client that your past does not define you – how you address your future will. Your children need you. They need your love, your commitment, and your presence.
You can build a better future one good decision at a time. With a dose of patience, humility, and perseverance, you can create a custody agreement that gives your children a future filled with hope and opportunity.
If you are ever feeling overwhelmed on this journey, remember this – you are not facing these challenges alone. You can do this, too.
I’m rooting for you.
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