Types of Custody Agreements
Custody agreements are recognized as a legal arrangement which outlines the responsibilities of parents in relation to their children after a divorce or separation, addressing critical issues such as living arrangements, education, and health care. The main purpose of these agreements is to provide clarity in a situation where complexities can often arise, particularly in circumstances where emotions are running high. By setting out the responsibilities of each parent, custody agreements help to ensure that the best interests of a child or children are prioritized and that their wellbeing is properly catered for.
Custody agreements find their significance in family law as they provide a framework through which courts can assess the suitability of individual custody plans. It offers a clear and organized approach to mitigating disputes between parents and facilitating decisions in the absence of consensus. Having a written custody agreement in place can play a crucial role in preventing what could be a lengthy and stressful legal process , instead providing a base for agreement to be arrived at and for parents to subsequently operate from.
Custody agreements come in various forms including sole custody, which is when one parent retains full custody of a child or children, or joint custody where both parents share the legal and physical care of a child. A third option is split custody, where different children are allocated to separate parent’s custody – this is rare however and is typically only implemented when necessary. Knowing the different types of custody arrangements as well as the processes involved in getting a custody agreement approved can greatly benefit any individual wanting to ensure the future wellbeing of their child or children.
Sole Custody
Sole custody is when one parent has the right to make both legal and physical decisions for a child. This is usually for when a parent poses an extraordinary danger to the child such that the other parent can raise the child alone safely. This type of custody assignment can be temporary or permanent.
Legal sole custody is when one parent has all authority to make all decisions on behalf of the child. Legally, doctors, school officials, and other professionals can only speak to the one parent with legal custody. However, you should be aware that parents with sole legal custody must still consult before making legal choices for the child.
Physical sole custody means that the child only sees the non-custodial parent on set occasions and spends the majority of their time with the custodial parent. Sole custody arrangements do not prevent the non-custodial parent from seeing the child, but the amount of time the non-custodial parent spends with the child is much less than what they would with joint or shared custody.
Solicitor-mediated agreements of sole custody generally require more conditions than other types of agreements, as the court understands the custodial parent has absolute authority over the situation.
Sole custody is also the least common type of custody agreement. It is never actually the result of one parent "wanting more custody". In the vast majority of cases where this is the result, the parent seeking full custody is lying to themselves or actually is in denial about the level of danger of the other parent. The courts do not grant sole custody lightly, as both sole legal and physical custody are often contentious situations with adverse consequences on the parent-child relationship.
Joint Custody
Alternative custody arrangements must be handled carefully, for the guidance of the court and the protection of the child. If parents share a child, they can arrange visitation agreements. Joint custody agreements are the most common solution for families with children.
In a joint custody agreement, a child may live with both parents on an alternating schedule. This system of shared care allows both parents to spend quality time with their child, while also sharing the responsibilities of raising their child. Joint legal custody is the most common agreement made, where both parents participate in their child’s life. In reality, 70% of custody cases result in joint physical custody. So what is the difference between joint legal and physical custody? Both refer to a child living with both parents. It is not uncommon for parents to live a few blocks from each other, and share time with their child.
The benefits of a shared custody agreement are often considerable. Parents save money, as they can live together and share dual income. Also, children grow up with both parents in a nurturing environment.
While co-parenting agreements are best for the child, at times, shared custody becomes a challenge for parents. At some point, the relationship must end, and parents must learn to co-exist. Acceptance is needed if co-parenting is to continue.
Mediation can help encourage joint custody for the benefit of a child. When parents organize visitation or custody arrangements, it allows the child to bond with both parents in a loving environment. In some cases, a parent may struggle to maintain their parental role, and often schedule visits, for the benefit of the child. Then a parent should offer to supervise visits with children.
In the best interest of the child, co-parenting agreements allow parents to put their child first. There are many forms of shared caring, including:
Each of these scenarios will require a separation agreement that suits the needs of each party. The plan must be reviewed and possibly modified as a child grows, and the parents’ goals and needs change.
Bird Nest Custody
Bird’s Nest Custody involves all members of the family living together in one house. The parents move in and out, like rest days, and the kids stay put with no major disruption to their daily lives. Supporters believe that this option provides continuity and comfort for the children while drawing the parents together under one roof where they are expected to cooperate.
Close to "co-parenting" at its best, this arrangement offers a continuum for siblings as they grow up. When implemented correctly, this option should also allow the parents to work on their relationship beyond the scope of their marriage without requiring them to play house when they don’t want to. Bird’s Nest Custody also allows the children time alone with each parent in traditional parenting time settings.
As with most options, there are pros and cons: The basic premise is that each parent needs to continue living his or her life as if the marriage is still a quality marriage. In other words, you have to work together. You also need to like being around one another.
Beyond Location: Traveling From Home Base When the children get older, it’s not unusual for parents to start considering a reversal, or to live in different homes, with the children coming to stay with the parent whose turn it is to rest away from the nest. While you hope that each parent provides the same level of care for the children as they embark on their journey, it’s not guaranteed.
One of the main issues here is that, despite the positive nature of this set up, there is no guarantee that Bird’s Nest will work for everyone. Any number of factors, such as employment availability, will impact how it works. In high-cost cities – like Chicago – any parent who considers an office job will have to commute, which means that the village set up isn’t necessarily guaranteed. Without a support system that volunteers to help offset costs, parents will likely find themselves on very difficult, expensive paths.
Several Factors Considered for Custody
Whether you are devising your own proposal for a custody agreement, or working with your family law lawyer to negotiate the best deal possible, it helps to understand how courts and parents alike come to custody determinations. Here are some of the common factors that shape custody outcomes:
Best Interest of the Child At the end of the day, family law courts look to the best interest of the child as the underpinning principle of almost every custody determination they make. The Child Protection Act in particular reflects this concept (see s. 37(2)). The Act instructs the court to decide the custody of a child with reference to whether such order would be in the child’s best interest.
The best interests of a child are sometimes broken down into nine factors: These factors can be weighed differently depending on the unique circumstances of each particular case. In other words, while all of these factors might be considered, they are not necessarily given equal weight. For instance, if a seven-year-old child has expressed clear and unequivocal preferences for custody, a court may prioritize that opinion over the preference of other children.
Parental Stability As custodial parents, we inevitably have an impact on the stability of our children’s lives. As such , courts consider parental stability when determining what kind of custody agreement would be in the child’s best interests. Parental stability is generally considered to mean parental financial security, independence, reliability, the ability to care for the child, and relative freedom from mental health or substance abuse issues that could interfere with parenting duties.
Existing Relationships with the Child On a related note, the extent of the parent’s previous involvement in the child’s life is also used as a factor in determining the best interests of the child. A mother who has largely cared for a very young child since the baby’s birth might receive favourable custody consideration because this relationship was able to anchor the child during a time of rapid emotional and physical changes. Conversely, a parent who left the family home and has had minimal contact with the child since (i.e., he has never changed a diaper or taken his child to school) might be seen as a potentially negative influence.
Ultimately, the factors courts and parents consider when deciding on a custody agreement are used to focus on what would be best for the child involved. Best interests are paramount, but that means different things in different circumstances.
Changing Your Custody Plans
Just because you and your ex decided on a child custody arrangement at some point in the past, that does not mean that it will always remain the same. Just as your living situation or one parent’s place of employment may have changed since the agreement, it is also possible that a child’s interests demand a different arrangement. Some parents find that the custody arrangement they originally thought would work well for everyone is now not sustainable.
If you think that a custody modification may be in order, part of the problem could have come from the wording of the original agreement. If you have not specified certain details of visitation, the result may be miscommunication or conflict between you and your ex. The fact is that there is no one-size-fits-all solution; every family situation is unique and custody agreements are no different.
If you and your ex have decided among yourselves that a modification on the custody agreement is in order and you are in agreement about what the new custody arrangement should be, it is imperative that you still get the courts involved: informal arrangements made without the consent of the court are not legitimate and would not hold up legally.
Informal modifications can leave one parent at a disadvantage financially, especially if that parent pays a set amount of child support based on the original terms of the agreement; informal modifications do not take away from or add to that parent’s financial obligation.
Your attorney will need to file a petition to have the modification approved by a judge, at which point the judge will sign off on the agreement between you and your ex. At this time, the judge will also issue an order detailing the new terms, which will make it legally binding.
Even if you and your ex cannot agree about a new arrangement, the courts will want to know that there has been a change in circumstances since the modification request was submitted. A child cannot merely express a desire to live with a certain parent, for example. A good way to explain it is that a modification will be granted only if it is in the best interest of the child.
If, on the other hand, you and your ex do manage to come to a proposed agreement, you must still have it approved by the courts. Once the judge signs off on the new agreement, you will still be expected to abide by it until the terms of custody change once again or until a new modification request is submitted and approved.
Legal Assistance
Given the complexities that each of the aforementioned custody arrangements may bring into play, we cannot stress the importance of seeking legal advice and support when drafting or modifying a custody agreement. Certainly, there are some situations where families would do well to turn to a family lawyer for advice or assistance: with regard to child relocation matters, high-conflict or highly contested proceedings, custody modifications , custody matters involving the relocation of a parent, spouses or professionals with mental health concerns or addictions, families with prior history of domestic violence or abuse, or families with parents who reside outside of Canada. In the hands of an experienced family lawyer, this all-important agreement can be drafted and optimized into a comprehensive mobilization strategy that supports both the best interests of the children and the goals of the parents.