Understanding the Lack of a Written Custody Agreement
In some separation and divorce situations, parents may have a verbal or informal, but not a legal, custody agreement. In such arrangements, one or two things may have happened: the parents did not make an agreement, or one parent took advantage of the other. For example, if you and your spouse go to a lawyer’s office, discuss your children’s custody and come away with either parents sharing custody or one parent having primary parenting authority, that is a formal agreement. If you and your spouse had a discussion about custody and your spouse has physical custody of the children while you can see them when you have time, that is not a formal agreement. Oftentimes, this means the other parent has restricted your access to your children for some reason.
There are many reasons why you may not have a formal custody arrangement . The reasons are varied, but some of the most common ones include:
If you and your spouse have not made a formal custody agreement, there may be many understandable reasons for it. After all, lost in the shuffle of creating a custody agreement are two very important people – the children. In most cases, parents simply fail to see the consequences that a simple handshake has on their children. Children need to know that they are safe and secure, even when the family unit is disrupted. Physical custody means that a parent provides a permanent or temporary home for the child. If you have not seen your children in some time, or if your spouse is withholding their visits, you may not see it as a priority. In reality, you need to understand what physical custody does to your child as well as the consequences that your lack of a custody agreement has.
Legal Implications for Parents
In the absence of these agreements, the law presumes both parents to hold joint legal custody of the child. This means that the parents share the responsibility for making important decisions about the child’s health, education, religion, and welfare. The parents must have regular communication regarding the child’s needs, and any disagreements may lead to conflict that requires mediation or court intervention.
Another legal challenge that may arise is the risk of one parent considering relocation. If a custodial parent wishes to move out of state or even to a different town, the court must grant permission for the relocation to be in the best interests of the child. Without a proper agreement, the custodial parent is not necessarily entitled to relocate with the child, which can lead to disputes and litigation.
Without a formal agreement, parents may also find themselves in the difficult position of dealing with the other parent’s new partner or spouse. New partners and spouses do not have legal rights over the child unless they adopt the child. In some cases, a stepparent may try to assert themselves in the parenting role and may try to undermine the other parent in the eyes of the child. In such cases, parents who do not have a custody agreement may not have any legal recourse to protect the child from the negative influence of the new person in their life.
These legal challenges and others that may arise without a custody agreement make it essential to speak with an attorney as soon as possible. A skilled and knowledgeable attorney can help parents work through the issues that may arise without an enforceable plan for custody.
Effect on Child’s Health
The absence of a formal child custody agreement can lead to a number of harmful effects on the child’s emotional and psychological well-being. Without a clear understanding of the residential parent’s expectations for parenting time, the child may be unsure where they will be at any given time of the week, creating an overall feeling of instability or lack of certainty. When a court is involved, the child will be much more informed and, therefore, better able to cope.
A child who does not have a clear understanding of where he or she will be sleeping, and when, is likely much more prone to feelings of anxiety or frustration with the situation. The child may feel an increased level of disappointment or distress if they are not informed properly or there are sudden changes in plans, thereby causing the child to be forced to feel and/or express these emotional reactions both while with one parent and upon returning to the other.
When there is no formal child custody agreement, the lack of provisions for important matters such as schooling, medical care, religious practices and other elements indicative of the child’s upbringing can create frustrations for both parents, generating discord and unnecessary tension within the family. This is to say nothing of the difficulties that will be faced as the child grows and begins to resist certain rituals, such as religious gatherings, or begins to take their own opinions on family-related issues, like schooling or medical treatment.
The absence of a formal child custody agreement can lead to a protracted period of time during which parents argue about exactly what the proper custody arrangement should be. Unfortunately, when the courts are not involved, these arguments may continue indefinitely, to the detriment of the child’s well-being.
For more information on child custody agreements and how they can affect your child’s well-being, consult with a qualified family law attorney.
How to Set Up Child Custody Without a Written Agreement
While it is ideal to have a formal, signed parenting plan in place, not every family has the time or ability to do so. Uniting separate households under one roof is no easy task, and so arrangements may need to be put in place quickly and without compromising everyone’s needs. Here are the steps that parents can take to establish informal custody arrangements that work for the parties involved:
Communicate openly and honestly
The most important factor to consider when determining a child’s needs is communicating openly and honestly with the other parent about their preferences. Parents should consider asking the child:
Discussing options directly with the child will help each parent understand the situation and vice versa. The next step is to document the agreement in writing .
Document the agreement in writing
While a formal custody agreement is incomplete without both parents’ signatures, document the agreement and outlining everyone’s roles can still be beneficial. Consider including:
Should any issues arise, parents can refer back to the documentation in the hopes of resolving disputes peacefully. Parents should periodically assess whether this versatile arrangement is still beneficial for the involved parties.
Periodically Assess
Creating a flexible schedule is highly beneficial in determining the welfare of minor children. However, schedules should be reviewed periodically to ensure that it still meets everyone’s needs. Things to consider documenting for a review include:
By assessing the arrangement regularly, minor issues that may arise can be discussed and addressed before they escalate. After the assessment, parents can choose whether to continue following the agreement, modify its terms, or pursue a new formal parenting plan.
When You Need to Get a Formalized Child Custody Agreement
Unfortunately, many parents find out the hard way that negotiating a child custody arrangement with the other parent is not always enough to guarantee future security. In particularly negative situations where parents lack trust or goodwill toward one another, a detailed and formal custody agreement is critical.
There are several ways an informal custody arrangement can fall apart: A divorcing parent may even (allegedly) keep the child from the other parent as a form of punishment or spite. Abduction and relocation of the child are additional reasons why a formal custody agreement is necessary. The only way to truly guarantee your parental rights if your custody arrangement falls through is through the legal process. If you have an informal agreement, it is not legally binding. A parent who takes sole possession of the child cannot be punished for violation of the informal agreement, because the law has no way to enforce it. Engaging in the legal process will result in an order of child custody from the court. Once the order is in place, there are severe and punitive consequences for any violations of the order. Further, the only legal paths available to modify the custody order will come from the court. If the non-custodial parent simply refuses to return the child, the custodial parent will have to go back to court to remedy the situation. Even with lawyers in the mix, this is a time-consuming and expensive process. In addition to protecting against guard against parental abduction and relocation, obtaining a formal order of custody from the court solidifies your relationship with your child while minimizing the potential for future conflict. Having the authority to exercise your visitation rights becomes much clearer with a formal custody agreement. Having a written custody agreement will also help you in obtaining child support. The more specific your custody agreement is, the greater the chance that the child support order will be reflective of that agreement. When your need for child support goes through the court, the judge will refer back to the custody agreement and use that information to set a realistic support obligation.
Support and Resources Available
Even with clear protocols in place, there are times where disagreements break out between parents. Will Mom or Dad take a child to their practice after soccer? Will Mom or Dad take the child on family vacations? Because these are not yet addressed in an agreement between parents, the issues often lead to heated conflicts that get played out in front of children. While parents do not usually want to keep children at the centre of their battles, the fact is that children notice when their parents are tense or preoccupied, and they feel the impact of the stress level in the household. Even when parents try and communicate their disagreement outside the earshot of children, there may be a feeling of palpable tension in their voices, or the conversation or argument may escalate into a stronger conflict. Kids don’t need any more on their plate than what’s already happening in their lives. Many parents are interested in the best for their kids, but that "best" can be interpreted in different ways. Some may think that professional sport involvement is important, while others may see it as an overcommitment that takes away from family time. Continuing education or post-secondary school involvement may be desired by one parent, but not by the other. Amount of time with each parent, quality versus quantity, living arrangements, schooling, vacationing contacts, cellphone use, extracurricular activities, and electronic device use are just some of the issues front of mind for parents when disagreements happen. There are parents who want to work together as a team and simply can’t find common ground or arrive at an agreement. Not all parents agree on what’s best for their children or how to handle family matters. There are some common points that parents can manage together to avoid putting their children in the middle: 1. Let a neutral third-party handle the escalating communication 2. Stay focused on the issues 3. Don’t engage about the differences in the presence of your children 4. Reach out to community resources for support Many families have found themselves in situations where no agreement has been reached. Whether it’s agreed to have no agreement , or the parenting plan had the wheels fall off, or a simple disagreement hasn’t resolved, the area is gray until something final is reached, If parents can work together on "no agreement" situations, the family can stay out of costly disputes and adversarial situations. Some of the best resources for family support when there is no agreement are: 1. Legal Aid – available to assist low-income families with legal advice and assistance 2. Family Services Family Law Information Centre – offering legal information resources to assist people with legal issues 3. Family Justice Counselling – available to couples who are experiencing stress in their relationship 4. Parenting Coordination – offered by Child Custody Assessment, Custody Evaluations, Parenting Assessments, and Mediation professionals to help parents implement an existing agreement or live by parenting decisions 5. Integrated Dispute Resolution and Mediation for Families – offered through community centre, integration service for people with disabilities, and other organizations to help parents resolve disagreements civilly 6. Family supports – many communities offer parenting through separation courses to assist families navigating the parenting issues 7. Children’s Centre – providing individual support to children facing family conflicts and developing coping strategies 8. School Psychology and Counseling Support – offering individual coaching and counseling support to assist children with coping strategies in dealing with family issues 9. Religious leaders – many faith communities have a family or community support and intervention service that reaches into families in crisis 10. Your trusted network – talk to your trusted associates for guidance, support, and brainstorming for ideas to help you through the situation Families without a formal custody agreement have many places to turn to for family and individual support. From legal aid to community supports to a trusted friend, there are resources to help families navigate through challenges.