Can a separation agreement including custody be incorporated into a divorce decree?
Within a separation agreement, the parties may agree to have the contract incorporated into a later divorce decreeIf the agreement is incorporated, it becomes akin to a consent order and is modifiable and enforceable as a court order. This means that an incorporated agreement, unlike an unincorporated agreement, would be enforceable through contempt and it would also be modifiable without the parties’ consent based on one parent’s showing of changed circumstances detrimentally affecting the child. There are, however, some counties in North Carolina in which judges regularly decline to incorporate a separation agreement regarding custody into a divorce decree when the only claim ever filed has been solely for absolute divorce. The fact that there is a custody order does not end the matter forever. As already mentioned, an order awarding child custody may, subject to the court’s having proper subject matter jurisdiction, be modified or vacated at any time upon one party’s motion and a showing of changed circumstances by the interested party. “Changed circumstances” are changes affecting the child’s welfare both positively and adversely. The changes must, moreover, be substantial for the prior order to be modified. The burden of proof in custody cases is by the greater weight of the evidence, as in most civil cases. The evidence, to support your claim for custody, must therefore show how your behavior and abilities will further your child’s overall development and welfare better than your spouse’s behavior and parenting abilities would do. In general, the parent with the best caretaking history or caretaking potential will be the parent preferred by the judge, provided that that parent and the child have a satisfactory relationship. But the judge will consider all the many common-sense factors enumerated here to determine which custodial placement is in the child’s best interests.
Child Custody Guide
A detailed breakdown of custody schedules, determining factors in custody cases, and how custody can differ when reached by agreement vs. reached by a court order.Read More