Written Custody Agreement

If you’re one of those people that knows that you’re going to be able to reach an agreement outside of court, we need to talk about having a written custody agreement.

This is very, very important and it doesn’t matter how amicable you are, how much you trust the other parent, how much you think that there’s never going to be any issues between you and the other parent with regard to scheduling or custody at all. You still need to make sure you have a written custody agreement.

First, you want to make sure that there’s a clear schedule. You want there to be no grey area. You don’t want to be the parent who shows up at daycare or school thinking it’s your custodial time, only to find out that the other parent has taken the child. When that happens, you can feel all the blood rush from your body, you’re a little bit panicked. You feel a sense of loss. There’s a lot of emotions that parents will feel when this happens.

If you have a clear cut schedule, then there’s not going to be any confusion with regard to ‘Whose custodial time is it?’ or ‘Who’s permitted to pick up the child from school?’

You also don’t want there to be any questions regard to holidays. Say you agree to a week on, week off custody schedule, but you haven’t really discussed the holidays. Well you may anticipate that you should have Christmas, while the other parent anticipates the same.

What are you going to do when you both are in the situation where you expect to have the child for the holiday? You’re both planning on having the child for the holiday, there’s no schedule in place–no written agreement–it’s just whoever has possession of the child at that point, can kind of keep the child.

You want to make sure that you address certain things in the written custody agreement. And you want to be able to have a written custody agreement because it allows you also to have advance planning.

Back to this idea of the holidays. You want to be able to know, “Okay, well I’m going to be able to have the child for Thanksgiving. I’m going to make travel plans. I’m going to buy him or her a plane ticket. We’re going to go spend time with my family.” And I know that I can go ahead and do that advanced planning. If you don’t have that, then you’re in this limbo period where you’re constantly having to negotiate – especially with regard to the holidays.

Last, it’s good to have a written agreement on custody because you need to have an enforcement mechanism. If you don’t have anything in writing, then there’s no way to enforce, “This is actually my custodial time.” You can’t take someone to court over it. You have nothing to point to to prove that you really, you were – this was a bad thing, and this was contrary to your custodial rights. So, you want to make sure you have that written custody agreement.

Now, when I talk about a written custody agreement, let me also mention that there are only 3 requirements in North Carolina to make a binding separation agreement. If you’re going to put custody in your separation agreement, you need to make sure that you have these three things:

  • it needs to be in writing
  • it needs to be signed by both parties, and
  • it needs to be notarized (both signatures)

You need to make sure that your actual written custody document has at least those things. Coming up with an email correspondence or text messages, and trying to rely on that being enforceable doesn’t work. It needs to have those 3 parameters in place to be considered an enforceable agreement.

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