Can You Get a Child Custody Agreement Without Going to Court?
You don’t necessarily have to go to court to get custody. A child custody agreement can be agreed upon in mediation so that you and your spouse can both agree on how to spend time with the children as the divorce moves forward.
The first step is for you and your spouse to devise an agreement you can both live with, and that is best for any children the two of you share. A child custody agreement is a document that is agreed upon by both parties, or that is ordered by a Judge in divorce court (or decided upon during the mediation process) that stipulates such things as:
- Visitation time spent with the children
- Who will gain primary and secondary custody of the children
- Whether the two of you will split time with the children 50/50
- Child support information
- And anything else that will help you and the other parent raise the children properly.
While all the above parameters sound straightforward, they usually are not, especially when you and your spouse don’t get along and you plan to fight for primary custody or other factors. This is where it helps to get the advice of a skilled and experienced lawyer who can help you negotiate your way to fair and even child custody in all regards.
What is a Standard Child Custody Agreement?
While the above is a good rundown of a child custody document, matters can get a little more complicated than that. Here is all you must consider when forming an arrangement with your soon to be ex-spouse.
- Schedule: A thorough child arrangement will include a residential or weekday schedule, which represents the routine you and your spouse will go through as you each spend time with the children throughout the week and on weekends. For instance, you may plan to split the children half the week, also known as joint custody. This arrangement works if you and your ex-spouse plan to live close to one another, which keeps the kids in the same school. If you don’t live close by, the non-custodial parent may get the children every other weekend while the primary or custodial parent keeps the kids the rest of the time, just to provide another example. Your child custody schedule may vary.
- Holidays: This represents the child custody schedule with regards to where the children will spend time on holidays, during school breaks, and on other special occasions. Agreeing on a holiday schedule keeps either parent from taking the kids across the state or out of the country in secret and without the other parent’s consent.
- Vacations: Here is where both parents will describe the vacation time they wish to spend with the children, where they will go, and for how long.
- Special Events: One-time events can be listed in this section of the child custody agreement, which represents special times with the children where the regular schedule changes. Examples may include which parent will keep the children in the case of weddings or funerals.
- Other Considerations: Also included in most child custody agreements are the exact pickup and drop-off times that each parent is required to adhere to. You may list which parent will host upcoming birthday parties, agreements to share medical and school records, and rules not to interfere with the child’s relationship with either parent. Other provisions will include how to handle the children’s medical and dental care, how to handle disputes about the agreement, and how to change the arrangement if needed.
What to Expect During Your Appointment with Family Court Services
Any time an order for child custody or visitation is requested, the San Diego Family Court’s Local Rules require that parents attend mediation services provided by the Family Court Services (FCS). Success at FCS mediation is crucial to the success of your child custody case, as family court judges place a great deal of weight on the FCS mediator’s recommendation.
At the FCS appointment, the parents may present information concerning the custody of the children to a court-appointed mediator. The parents may also present relevant documentary evidence, including affidavits from friends and family.
The FCS mediator will issue an FCS Report and Recommendation to both parents and to the family court judge. The recommendation takes into consideration all information obtained by the mediator during their interview with the parents. The mediator will also review the file and assess any contact they’ve had with other third parties regarding the matter before issuing a recommended parenting plan.
Each parent is entitled to take 10 calendar days from receipt of the recommendation to review and respond to the information included in the report. The family court will grant a continuance of the hearing upon the request of either parent if the FCS report is not received with the 10-day time period.
At GYL, we prepare our child custody clients to succeed at FCS mediation and do everything possible to obtain a favorable result.
Creating a Co-Parenting Plan
Parents going through a divorce or unmarried parents looking to separate are faced with the often-difficult task of developing a co-parenting relationship that works best for the children involved. The parents must accommodate work and school schedules when creating a child custody schedule that works. The overarching consideration must always be the best interests of the children.
The best co-parenting plans and child custody arrangements are those that ensure access to both parents on a regular basis. True shared parenting arrangements generally involve the parents alternating weekends and dividing weekdays in varying schedules.
In any case, it is always best for parents to work together and be flexible with one another regarding the children’s schedules. The last thing that you want is for a judge to dictate the terms of your parenting plan because you were unable to agree to the terms on your own. However, unfortunately, sometimes there is no other choice.
Always remember: Taking a child-centered approach is the key to success in cases involving children.
Private Custody Evaluation
Occasionally, in complex child custody cases, high-conflict child custody cases, and cases where there are allegations of drug abuse, alcohol abuse, domestic violence, or mental illness, one parent may seek the intervention of a psychologist or psychiatrist specialized in addressing these issues as they relate to child custody and visitation.
The party seeking the private custody evaluation does so in lieu of FCS mediation and, absent an agreement from the other parent, that party must request that the court order the private evaluation.
The private custody evaluator conducts what is called an Evidence Code “730 Evaluation.” This evaluation is given to the court after the evaluator has met with both parents, the children and other third parties involved with the family. This evaluation is considered to be admissible evidence at the eventual child custody hearing and holds a great deal of weight with the family court judge.
Private child custody evaluations are very expensive but are often well worth the extra money when circumstances warrant the need for one.
Modifying Child Custody in San Diego County
Generally, and with few exceptions, once a child custody order is made, it is difficult to modify. When requesting modification to an existing custody order, the requesting party must prove that there has been a substantial change in circumstances to warrant updating the existing conditions of the custody order. This standard comes from the case of Montenegro v. Diaz (2001) 26 Cal. 4th 249.
The change in circumstances could be a change of schedule, a change of location of one or both of the parents, a job less, a medical condition, or any number of significant changes affecting either parent’s ability to adhere to the old custody order.
In order to move forward with a modification absent an agreement from the other parent, the requesting party must move the court to initiate a mediation appointment with Family Court Services and request a court hearing on the issue of child custody modification.
Emergency Child Custody Orders
Generally, a family court judge will not issue custody orders on an emergency basis unless there is evidence that the minor child faces a threat of immediate harm or threat of being removed from the State of California without the express consent of the other parent.
If a threat legitimately exists, it is imperative that you act fast. Contact GYL now if this is the case and we can appear on your behalf in family court within 48 hours to request emergency child custody orders.
Consult a Child Custody Lawyer in San Diego County Today!
GYL Partner Catie Young specializes in child custody cases. Whether you need to negotiate a co-parenting plan with the other parent, or you need a skilled lawyer by your side in the courtroom, Catie and our entire team of Carlsbad child custody attorneys is here to help.