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  • Jordan Reilly

Why every Separating Couple Needs a Custody Agreement


Do I need a custody agreement?


As both a family law attorney and a single mother I cannot more strongly recommend that separating parents adopt a formal custody agreement. My ex and I have a custody agreement. We have had it since we separated 7 years ago. We have never needed it. We agree on every schedule, we speak freely and compromise easily for each other's sake. But, it is there, if anything ever changed it is there and it is the foundation of the great co-parenting relationship we share.

Being able to easily work with your ex for the best interest of your children is a wonderful thing. But, even the most flexible and cooperative parents should consider making a formal custody agreement. There are several key reasons that a formal agreement is a must. First of all, as you and your ex move on with your lives you will grow apart more and more. Your priorities will change. Even parents who are still together tend to have different parenting styles. Those differences will only grow as time goes on and can become the foundation for future disputes.

If things do fall apart, they tend to do so very quickly and the systems for remedying the situation are very slow. It is always disheartening to see a parent kept away from their child. The Court does not consider a child being kept from one of her parents to be an emergency unless there is some evidence that the child is unsafe. It can take weeks to get before a master in custody and by that time your ex will have set up a new status quo for your child.

Of course the worst case is the one where a parent runs away with a child. Without a custody order or agreement there is no kidnapping. If your ex leaves the state or the country with your child it can take you months or years to get them back and the cost can be astronomical. We have won children back for our clients from great distances but I am sure that every single client would rather have not lost their children in the first place.

The main reason in favor of making a formal agreement is that it doesn't have to limit you. You and your ex can still be flexible, you can compromise and change terms as you need to. The document is there as a safety net to protect you if anything goes wrong. Your agreement can be as simple or as complex as you want. You just want to be sure that it clearly indicates the division of time and rights that you and your ex intend to maintain.


Remember that, to be enforceable, an agreement must be written, signed and filed with the Court along with an Order asking the Court to accept the agreement as binding. You would need to also file a Complaint in Custody, that gets you the docket number under which the agreement can be filed. You can file the Complaint and the agreement at the same time. There is no need to go to Court if you can agree to the terms.


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