When counseling clients during a divorce where children are involved, I am often asked whether or not the parents should put together a custody order to file with the Court. The answer I give the client is that it depends. The chief consideration when determining whether or not a formal custody order is needed rather than the parties simply making arrangements on their own is how well (or poorly) the parents communicate and work with one another. If the divorce is relatively amicable and the parties can come to an understanding regarding custody and are willing to be flexible, an informal agreement often works.
However, if either parent is concerned that the other will not be willing to work together or will be likely to withhold the children from the other parent, it is usually best to draft a custody agreement and have it filed with the Court. The primary benefit to having the agreement signed by a Judge and filed with the Court is that the agreement is then enforceable. For example, suppose Dad is supposed to have custody of the children for a weekend and then refuses to return them to their Mother on Sunday. If there is an agreement filed, Mom can then contact her attorney and file a motion asking that Dad be held in contempt of the custody order. Dad can then be ordered to return the children and can be sanctioned by the Court for his failure to follow the order.
On the other hand, if there is no agreement filed, the law supposes that each parent has an equal right to custody of the children at all times. Therefore, if the above circumstance occurred without a filed agreement, there would be no mechanism for Mom to enforce the informal agreement and she would have no recourse other than to attempt to talk with Dad or file a custody complaint with the Court and go through the mandatory custody procedure.
If you are contemplating whether or not you need a formal custody order or a mere verbal agreement to manage child custody, please take the above into consideration and determine whether or not you anticipate any future problems. Either way, it is advisable to contact an experienced family law attorney and have him or her offer expert advice as to whether or not an agreement is necessary in your case.
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