Negotiating Custody Agreements

Although divorce can generally be highly emotional, the one issue that typically evokes the strongest feelings is custody.  Whether or not the parents were married, parties often struggle with the idea of dividing parenting time with their ex and insist on sole custody.  However, while sole custody is awarded in some cases, the majority of custody cases result in some sort of shared custody arrangement, so it is best for parties to have realistic expectations.

Under Virginia law, custody is decided using ten factors to determine the "Best Interests of the Child."  Therefore, the focus is on the interests of the child(ren) and not the parents in any custody matter.  The court considers, among other things, evidence of each parent's relationship with the child and the role he/she has played and is willing to continue to play in the child's upbringing and development, the propensity of each parent to encourage the child's relationship with the other parent and any history of family abuse.  Once the issue is placed before the court for a decision, the parties will be bound by the judge's decision. Therefore, it is often advisable for the parties to negotiate a custody agreement that is tailored to their family's needs. Here are some considerations to keep in mind:

1. Get legal counsel. While it is possible to enter into a custody agreement without an attorney, it is certainly not advisable. Having an attorney advising you and negotiating the agreement on your behalf will allow you to benefit from the experience gained from other custody cases and insight on which provisions worked best for similar arrangements.  It is risky to attempt to navigate the negotiation and drafting process without knowing what the court is likely to decide in a similar case or the legal terminology that is appropriate in order to avoid misinterpretation of your agreement. When the stakes are this high, it is a risk not worth taking.
2. Understand custody terminology.  Before getting into the details of the custody arrangement, the parties typically set out the type of custody: sole or joint legal and physical custody.  Physical custody determines where the child will live while legal custody refers to the major decision-making regarding the child, such as education, healthcare, etc. 
3. Study parenting time schedules.  There are many possible schedules that parents could use to divide their parenting time, depending on the needs of their family.  Before proposing or agreeing to a schedule, consider all of the available options and how each will affect your family's schedule, including the child's activities.
4. Know which holidays matter.  Whether it is religious holidays, Thanksgiving, New Years, other federal holidays, Summer, Spring Break or birthdays, every family is different, so it is important for you to know which holidays you want included in the agreement.  Some agreements divide time between the parents for each holiday while others alternate. A mix of alternating and sharing is also possible.  Depending on how cooperative the parties are, some agreements allow parents to decide together each year and give notice by a set date.  Your attorney will help you figure out which arrangement might work for you, but you will need to determine which holidays matter most to you.
5. Understand the importance of compliance.  When a custody agreement is executed, either party can get the court to incorporate it into an order, which makes it equivalent to a court order. This gives either party the ability to invoke the court's contempt powers against a non-complying party.  The consequences can vary, but they can range from paying the other party's attorneys' fees to jail time! Therefore, it is critical that you know the terms of your agreement and continue to comply with them.

Of course, it is not always possible to have a meaningful conversation about custody with the other parent or to reach an agreement, so settlement is not always an option.  However, if parents strive to work together for the best interests of their children and set aside their differences, they can fashion a custody agreement that is best suited for their family's particular needs.

If you need advice regarding custody, contact our office to schedule a consultation.

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