Divorce Lawyers San Diego - Custody Agreements That Work
Custody Agreements that Work
How can you be sure that the custody agreement you have is a good one? It must be a compromise that will satisfy both parents and work in the best interest of the children. It must be precise and detailed so that everyone understands the plan. There are many ways that this legal document may be constructed. It may include as many or as few issues as you choose. Just remember, it should always focus on what will work best for the children involved.
The agreement must contain your legal and physical custody arrangement. It should be tailored specifically to the needs and requests of you and your ex-spouse. When drafting the agreement, think about how you can make the situation the least stressful for the children.
Just as important as planning how things will be handled regarding the children, is covering the possibilities of things not going as planned. Make sure the document contains clear verbiage on what is considered a breach of the contract. It should spell out the details to which each of you agrees, and what will happen if one of you breaches the agreement.
Also include a provision to address changing the agreement. Consider stipulating that your agreement is effective for a certain amount of time, and that if needs change, it may be renegotiated. Take the verbiage even one step further by including specifics on what conditions would call for a change. This will allow you to approach future needs and changes of circumstances in an easy, expected manor. Be aware that you or your spouse’s current situation may change. One or both of you may remarry. Stepchildren or additional children may enter the family. Either of you may change or lose jobs, move residence or experience other life changing events. Remember to include issues that you anticipate will be problematic. This will help eliminate future legal fees and court appearances.
You may want to specifically state that the agreement should be reviewed every year or every two years, regardless of need to change. According to mediators and lawyers, large numbers of parents reevaluate their permanent agreements within the first couple of years after signing them. Consider this ahead of time and reduce the emotion that may resurface when a change is desired.
Consider adding agreement on how you will disagree. If you can’t reach consensus on a non-emergency matter, clarify how it will be resolved. One option is using a mediator. Put in writing how that mediator will be chosen. Decide what next steps are to be taken if mediation fails.
PARENTING PLANS
All states require a custody agreement, but some also ask that a parenting plan be filed with the court. This plan implements the custody arrangement and is sometimes, but not always, identical to the custody agreement. Its purpose is the same: to formally reach an understanding about what each parent’s responsibilities are for the child, including who makes which decisions, which hours each of you gets to spend with your children and where the children will live. The best part of a parenting plan is that you are in control and can negotiate the terms of the agreement with your spouse.
Presently, thirty states recognize parenting plans and make parents incorporate them into the court order. That means the court reviews them and they are enforceable should there be a problem. In ten out of fifteen states, these plans are only required when there is joint custody. Washington is the only state to insist on a parenting plan regardless of the custody arrangement, and fifteen others recognize some kind of a parental agreement. Some states demand parents address specific issues.
The kinds of issues you put in your agreement or parenting plan depend on your arrangement. If you have sole custody, you are legally allowed to make all of the decisions dealing with your child. If you have joint legal custody, then both of you may have an equal say in a child’s medical care, schooling, and religious training. The agreement address which decisions each of you will make and when. You may feel strongly that your children should go to a single-sex school and want to call the shots about their education. Your husband may feel equally strongly about their religious upbringing. If you practice different religions and can’t agree on which you want for your children, you might put in writing that they will be exposed to both religions and can choose when they reach age eighteen. If your relationship is amicable, you may both want to be involved in making all major decisions within each category. In part, how you structure it will depend on how well you and your spouse get along.
After establishing which decisions each of you will make, break them down further. Some parents delegate the day-to-day details to the primary caretaker. If the children live with you during the week, it may be best that you decide about after-school activities, especially since you are the one doing the transporting. If your spouse sees the children for extended periods during the week, a joint decision making process may be most fair. If this is the case, consider including a transportation schedule. This lets each parent know from the beginning what his and her obligations will be.
Here are some issues to address in your documents:
Finances
1. Who is responsible for paying and for what?
2. If the expenses are substantially higher at one house is the other parent compensated?
Schools
1. Who decides which school the children attend: day care, public, private, or home schooling?
2. Will the child be in a special education or gifted program?
3. Which parent or parents will be responsible for monitoring the child’s performance?
4. Will the parents attend parent-teacher conferences separately or together?
5. Who will be involved in Parent-Teacher Association activities?
6. Will both parents receive report cards and other school records and notices?
7. Who will choose and be responsible for the children’s after-school activities?
Medical Issues
1. Which pediatrician, dentist, or therapist will the children see?
2. What if the parents don’t agree that a counselor is necessary?
3. What if one orthodontia is necessary? Who will choose the orthodontist and who will pay the fees?
4. You should include a clause saying that the parent who receives medical, dental, and/or eye care benefits will be responsible for these payments.
5. Who will take them to their regular visits?
6. What is the plan if there is a medical emergency? Will the custodial parent notify the non-custodial parent before the child is treated? What if there is no time to wait? Will the doctor make the ultimate decision, and if not, who will?
7. What responsibility does the custodial parent have toward the other parent when the child is sick with a virus or cold? Is the custodial parent required to tell the non-custodial parent about every cold?
8. Will visitation time be made up if the child is too sick to switch houses? Who makes that call? If the child needs medicine, how will one parent communicate instructions to the other parent?
9. How do the parents decide on elective surgery?
Some of these thought may not be meaningful for you. If you have a good relationship or trust your spouse’s judgment on these issues, you may decide not to include them. In the initial stages of your divorce, it is best to have strict schedule. This is best for you, your spouse, and most importantly, your children.
Living Arrangements
It is important that this portion of the agreement be very specific. The agreement must state with which parent your children will live and when. You should be clear about drop-off and pick-up times/schedules. Be sure to include a provision stating that you and your spouse must notify each other before your child is taken out of the state.
Child Care
If you live close to each other, think about writing a clause that says if either parent can’t be home, the other will get the first option to “baby-sit.” You might want to provide a list of acceptable baby-sitters or agencies or state how baby-sitters will be chosen.
Be clear about when your child may be left alone, or put in a clause forbidding it.
You will also have to decide who will pay for child care if one parent or both work. If your office is at home, you might want to stipulate that you will have help during your work hours.
Access
This specifies how you and your ex-spouse will communicate with your child when the child is with the other parent. The agreement should discuss when and how often it is acceptable. You could stipulate that when the children are with one parent, the other will be allowed unencumbered contact. This may mean via telephone, fax, regular mail, or E-mail. Some agreements provide times when this communication is to take place. Even if you and your spouse currently have a good relationship, this provision is a way to protect yourself should your circumstances change.
Transportation Between Houses
Be sure to discuss how your child will travel from you house to your spouse’s house. You want to be responsible for taking your child one way and have the other handle the trip back. The farther away you live from each other, the more complicated the plan might be, and you will need to address this in the agreement. If there are costs attached to transportation, like plane, bus or train fare, spell out which parent will pay. If this applies, think about how you feel having your child travel alone and spell details out in the agreement.
Vacations and Holidays
Besides the day-to-day schedule, you should address holidays, birthdays and time off of school. Sit down with a calendar and circle all holidays for the year, including those at school. Decide which ones you really want to spend with your child, and think about which holidays you would be willing to trade off. This will put you in a better bargaining position. The farther in advance you can plan, the more bargaining power you may have. You also won’t have to spoil a special occasion with a fight beforehand. It may save you in other ways, too. If you live far apart, it gives you time to research the least expensive plane, train, or bus fares.
Some schools have special days for children and parents. Find out what days they are and allocate them so your son or daughter will not end up spending the day alone. It may also eliminate any embarrassment your child might feel if you and your husband both attend and are not civil to each other. Request a school schedule as soon as it is published.
Parents split holidays in various ways. You might want to alternate years, spending Christmas, Kwanza or the first night of Hanukkah with the children in even years and Thanksgiving in odd years. If you observe a two-day holiday, you could stipulate you will split it, if that’s feasible, or switch every year. Or if you are able, divide the day, with your children spending 8 A.M. to 3 P.M. with one parent, and the rest of the day and evening with the other. Some parents celebrate important holidays together with their children. Usually, this happens when neither parent has remarried.
Occasions such as Mother’s Day and Father’s Day are typically celebrated with the appropriate parent. If your weekend falls on Father’s Day, you may have to give up part of your time with your child. If that’s the case and you want to make up the time later, find out if your ex-husband will consent, and if so, put it in writing.
You will also need to schedule school vacations. Depending on your custody arrangement, you may split the time with the children or have the non-custodial parent get the whole vacation. To cut down on baby-sitting costs, consider making it required that you split their vacation time equally. Because it is longer, summer might not be given to just one parent. You will also want to specify how much advance notice is needed to request summer vacation time with the children. As a couple, you will have to decide about camp, teen tours, community service programs, or a job at home or elsewhere.
Birthdays
Your child’s birthday is likely to be a sticking point. You will probably both want to be with her on that day, but if you don’t’ live close, it may not be an issue. If her birthday is in the summer, that could change the custody schedule. You may choose to celebrate your child’s birthday separately and have two different parties or celebrate jointly with one family party. Some parents pick a date when they will be with their child to formally celebrate the occasion.
Permissible Activities
If you have strong feelings about a specific activity or sport, you could address it in your custody agreement or parenting plan. Let’s say you oppose ice hockey, snowboarding, or in-line skating, but your husband doesn’t. You could impose certain restrictions if the kids did do them. The agreement might require your child to wear a protective helmet for all three activities, for example. This level of detail may seem like overkill, but if you decide on the rules and follow them, your husband can’t later turn around and say you are trying to control how he parents. At the same time, if he refuses to have your child put on the helmet, you could charge he is violating the agreement and being neglectful.
Moving
Can you or your husband move out of the jurisdiction, and if so, how far? This is a question you might want to answer in your agreement. If you think it’s a possibility, add a clause outlining what would happen if you or your husband were to move. It could say you would retain primary custody but accept financial responsibility for transporting your children to see their father. Or it might say you would split the cost. Or the deal might be that if either one of you moves, the other would receive custody, or at least primary physical custody. Another possibility would be that you continue to be the primary custodian but have the children spend a good part of the summer, as well as other vacations, with your husband.
If you feel you can get a good agreement on moving now, you may want to include it. But if you think you won’t get the kind of clause you want, don’t bring up the topic.
Insurance Coverage and Medical Expenses
Medical insurance coverage is usually addressed in the child support order but may also be included in the custody agreement. Besides basic health insurance, think about a provision for dental and eye care. If your ex-spouse is covered through work, make sure he provides coverage for the children; if he is self-employed and your job offers coverage, you might be responsible. Depending on your financial standing, you could try to get your ex-husband to pick up the tab for the whole thing or split it fifty-fifty. These items can be expensive, so clarify it in writing so you don’t get stuck if your husband suddenly decides not to pay.
Life insurance should also be addressed. If your ex-spouse agrees to pay for educational costs, medical benefits, extracurricular activities, or other child care costs, try to negotiate a clause saying he will carry life insurance to fund these costs. If he were to die and not leave enough money to cover these costs, money provided through life insurance could help you pay them. Consult an insurance agent for available plans and terms; the agent can help you figure out what kind of plan and what amount would be adequate.
Income Tax Exemption
Also include in your agreement which parent will get the income tax exemption for the children or if you will split the exemption. By law, if you have physical custody at least 51 percent of the time, you are entitled to file as head of the household and qualify for the tax exemption. If you split custody, the parent who has the children most during the year can claim this exemption. Parents can change this rule by signing the IRS form 8332. This will let the non-custodial parent take the exemption. The exemption is sometimes used as a bargaining chip, so you might think about trading it for a concession on another issue that is important to you.
Child Support
Some parenting plans address child support. This issue, however, is often covered in a child support order.
Ingredients of a Good Custody Agreement
• Think about having a temporary agreement first.
• Make sure the focus is on what works best for your child
• Agree to exchange all educational and medical information pertaining to your kids.
• Define your role and your husband’s, including which decisions each of you will make.
• Include issues you anticipate might be the basis for a later disagreement and work them out in advance.
• Address what happens if one of you breaks the agreement, what you do if circumstances change, and what constitutes a change.
• Specify an annual time to review the agreement.
Remember that when you sit down to negotiate your first custody agreement, emotions and tempers may be strained. Increasing the number of issues on the table may make reaching any agreement more difficult. The key is reasonableness and compromise. The more you win at this stage, the more difficult it may be to work cooperatively with your ex-husband in the implementation of the plan. Decide what is really important to you and focus on achieving those goals. At the same time, recognize what is most important to your former spouse. There may be points on which you decide to compromise. Your life, and the lives of your children, will be less stressful if both you and your ex-husband feel that the plan is fair.
