7 Tips for Creating a Custody Agreement

Over the years, I’ve represented hundreds of mothers and fathers from various backgrounds. In doing so I’ve learned a few (okay, maybe more than a few) things about navigating the divorce process, particularly negotiating and preparing a child custody agreement.

It is no secret that dealing with who will have custody of the children is one of the hardest, if not the most difficult part of getting divorced.  It also can be the most expensive.  However, while I can do a cost-benefit analysis on other parts of a divorce case for a client, it is very difficult to do that with child custody.  Let’s face it, you can’t put a price tag on your kids. 

Finances are not the only reason to come to an agreement regarding custody.  If you and your former partner can’t decide on who will have custody (or when), a judge will then make that decision for you.  In choosing this option, you are relinquishing the power to decide where your children will spend holidays and where they will wake up each day to a third party. That person may never meet your children and will likely only meet you for a few hours.  Sound scary? It is. While sometimes it is unavoidable, I always recommend clients try to come to a child custody agreement to avoid handing their children’s fate over to a stranger in a black robe.

Related: 6 ways to save on legal fees in your divorce

So what should you do?

So I know what you are asking, what is the best way to come to a child custody agreement? Where should you start?  During my years of practice helping countless families, I have developed 7 tips for creating a successful child custody agreement.  In this article, I will share those tips with you and why I think you should consider them if you are either creating a new child custody agreement or modifying an old one.  They are:

1. Be realistic about your schedule when preparing your child custody agreement;
2. Prepare yourself to not get everything that you want;
3. Take family holiday and vacation traditions into consideration;
4. Consider your children’s needs and preferences;
5. Develop a communication plan and include it in your child custody agreement;
6. Plan for worst-case scenario; and
7. Understand that your child custody agreement cannot cover everything.

By keeping these maxims in mind, you will be ready to have a reasonable and productive conversation with your attorney and/or former partner that will help lead to resolution of your child custody matter.

But first, what are the types of child custody arrangements?

Before we discuss the tips, I first want to explain standard custody arrangements. Most disagreements in custody cases involve the regular physical custody schedule, i.e. where the children are going to be sleeping and spending their time on a daily or weekly basis.  When I first started practicing family law, it was very common to have a schedule in which one parent, usually Mom, had custody of the children most of the time and the other parent, usually Dad, had the children every other weekend and perhaps one night per week.  

However, in the last ten years, I have seen the courts move towards awarding parties shared physical custody, meaning that the parties have equal time with the children per week.  This is also called a 50/50 or joint custody arrangement. 

There are a few types of shared custody schedules. In some, the parties have the children every other week. In others, the parties rotate custody in two or three day blocks. Shared custody has almost become the presumption in some states. However, this does not mean that this schedule is best for your children or for you.

Related: Child custody terms that you need to know

And now the tips . . . .

1.Be realistic about your lifestyle and schedule when creating your child custody agreement.

In a desire to have equal time, parents can sometimes forget that their work schedule and lifestyle just doesn’t allow for such an arrangement.  For example, in a shared physical schedule, both parties would be responsible for getting the children to school on their days.  But have they thought about whether this child custody agreement would actually work in real life?

What if one parent lives an hour away from the school? Is it in the best interests of the children to wake up an hour early to get to school just to stay with mom or dad during the week? Or, what if mom travels for work regularly and isn’t home for several nights in a row? How can she have custody on those days if she is not available?

These types of real life factors need to be taken into consideration. This can be done easily in a child custody agreement. Settlements allow for flexibility and creativity. The court system does not. For example, if you and the other parent live far apart, you could share custody in the summer when getting the kids to school isn’t an issue and have a different arrangement during the school months when it is. 

Or, if you travel for work, see if you can arrange your travel schedule to be the same days per week.  Then, your travel days could be the other parent’s custodial days and you could have the remainder. Remember, this type of creativity only works if you are willing to work with your former partner for the benefit of the entire family, especially your children.

2. Prepare yourself to not get everything that you want in your child custody agreement.

As I said above, custody cases are tough.  Both parents want their children 100% of the time. That is impossible when you are divorced. In addition, there may be residual anger between you and the other parent, particularly if you are recently separated and/or are still fighting over financial issues.

This will likely be your backdrop when trying to come to a child custody agreement.  Again, custody cases are tough.  By now you are probably saying to yourself, yes Liz, I get it. Custody cases are no picnic.  But really, what am I supposed to do when it comes to getting a child custody agreement?  Don’t worry, I’ll tell you.

First, make a list of your non-negotiables.  For example, what holidays matter to you most? Do you live all year for Thanksgiving? Do you treat birthdays like a national holiday? In other words, what are the custody items that matter to you most?  Write them down.

Second, make a list of custody items that you don’t really care about.  Does it matter to you if the children come back to you at 4 or 7 on Sunday? Would you sleep through the fireworks on the 4^th of July if you could? Write these down as well. 

Okay you got your lists, now what do you do?

Now that you have your lists, make sure that you have them with you when discussing a child custody agreement.  If you are working with an attorney, make sure that he or she has them as well.  This way, if your attorney is doing the negotiating for you, he or she won’t need to keep asking you what you want.  This will prevent confusion and unnecessary legal fees.

Being able to negotiate away terms that you don’t really care about will increase your likelihood that you will get a custody agreement on your terms that matter most. Also, as a bonus, you will look very flexible if you are forced to take these discussions before a judge or mediator.  Being the reasonable party willing to make a deal is always a plus.

You will never get all of what you want in a child custody agreement. This may be because both you and the other parent want conflicting things. It could also be because the other parent is objecting to what you want out of spite. Or, let’s be honest, you are doing the same.  That is why you need to focus and fight for what you want (first list) and compromise on those items that don’t matter to you as much (second list).

3. Take family holiday and vacation traditions into consideration.

Frankly, I don’t think parties take family traditions into consideration enough when preparing custody agreements. It’s almost as if the separation has caused amnesia and father can’t remember that the children have spent every Easter hunting for eggs in mother’s aunt’s backyard.  While it is important for the children to see both parents on major holidays, it is also important for those children to continue to experience family holiday and summer traditions.

Remember, the children did not ask for this divorce and they didn’t ask for their whole world to change.  Why should they suffer because their parents don’t want to be together anymore? Instead wouldn’t it be better to try to keep some parts of their lives as consistent as possible, especially when so many parts are in transition?

Therefore, I suggest that any child custody agreement takes these traditions into account.  For example, maybe mom can have the children every Easter for the egg hunting extravaganza but dad could take them out to breakfast beforehand?  This same idea would apply for summer vacations.  If father’s family rents a lakeside cabin every third week of July, father should be allowed to have the children for this experience.  Mother can take the children on vacation another week. This way, the children get to keep taking a vacation that they love and mom can start a new family tradition with them during her time.

Related: Summer Custody Issues You Need to Consider

Related: How to Survive the Holidays as a Divorced Parent

4. Consider your children’s needs and preferences in your child custody agreement.

A lot of clients ask me if there is an age when children get to choose where they want to live. While the answer may vary from state to state, in Pennsylvania there is no such age of decision. Instead the court will take the “well-reasoned” preference of the child into consideration when determining a custody schedule.  For example, if a child wants to live at dad’s house because he can eat chocolate for every meal and watch scary movies until 2:00 a.m., it is unlikely that the court will find that his preference should control as those activities are not in his best interest.

However, even if your child’s opinion won’t control the agreement, you should still consider his/her reasons for wanting certain custodial schedules. For example, would your child rather live at his father’s house during the school year because he has his own room making it easier to get his homework done there than at mom’s house where there are other children?  Does your child have special needs making frequent transitions between households difficult?  Does the other parent’s school district offer better services to address your child’s learning disabilities? These are legitimate concerns that should be contemplated when preparing your child custody agreement. 

Remember, the child custody agreement only works if it works for your kid.    

5. Develop a communication plan and include it in your child custody agreement.

One of the most often cited reasons for divorce is communication problems. Therefore, it is likely that you and the other parent have a hard time speaking to one another in a productive manner. While you may wish to never speak to him/her again, that is not possible if you have children. Your children need for you to be on the same page when it comes to topics such as discipline, routine and their general needs.

However, there are a few things you can do to address this problem.  First, you and the other parent can see a co-parenting counselor. These professionals can help you work through your communication issues and develop a plan so that you can successfully co-parent with one another even though you are no longer living in the same house. I recommend that most of my clients see a co-parenting counselor for at least a few sessions.

Second, you and the other parent can use co-parenting software to help facilitate communication. There are a few options on the market. However, the two that I am currently recommending the most is Talking Parents App and Our Family Wizard (OFW).  OFW does a few things.  It allows parties to email, exchange documents, and share a calendar all through a secure site that requires a login. It will even review your emails before you send them to highlight foul or aggressive language.  Gmail doesn’t do that, does it?

Regardless of which method (or both) works for you, how you and the other parent need plan to communicate can be included in your custody agreement.  I also suggest that you include language in your child custody agreement that neither parent will use the child as a messenger. It is not fair to your kid to be treated like the postal service. It only causes anxiety for them.  Agree upon the best way for you to communicate directly with the other parent and use it.

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6. Plan for worst-case scenario in your child custody agreement.

Sometimes, clients will come to me requesting that I prepare a very vague custody agreement. Those types of agreements will generally not have a specific regular physical custody schedule and/or a detailed holiday schedule. I usually get this request when the parties are amicable and believe they will be able to work out any issues that arise in the future without the help of counsel or the courts.

I don’t recommend these types of agreements. Here’s why.  While it is great that the parties are on good terms at this moment, this may not always be true.   For example, what if one party gets remarried, causing a strain in the parenting relationship? What if one parent wants to move away and the other objects?  Yes, you can go to court to modify your agreement and resolve these issues. But the court system is slow. What do you do when you have a child custody agreement that doesn’t say who should have the children for Christmas and its December 23^rd?

Having a detailed custody agreement doesn’t mean that you can’t modify it as needed. In fact, it is very likely that you will.  I always tell my clients that their agreement is the default to fall back on if they can’t agree to something else. 

For example, if both parties agree that the Thanksgiving custody exchange should be at 12 p.m. instead of 2 p.m. that is fine.  In fact, I think it’s great when parents can work together to make these types of changes.  But, if such an arrangement can’t be worked out, then both parties know they must follow what the custody agreement says.  No need to call lawyers or try to file an emergency petition to sort it out. Doesn’t that sounds a lot less stressful?

7. Understand that your child custody agreement cannot cover everything.

While you and the other parent should try address as many issues as possible in your custody agreement, please realize that it cannot address every possible scenario. Who has custody when there is a family wedding on the same day as the other parent’s holiday? What if a parent’s flight is delayed and the approved babysitter isn’t available? 

Life happens.  While we as attorneys do our best to address and draft for any problems that may arise, we can’t predict the future.  Therefore, it is important to contemplate as many issues as you can in your agreement but remain flexible and reasonable with the other parent when dealing with those things that you could not. You and the other parent are both going to need favors from the other during the life of this agreement. Remember that before you say no to him/her on one of the uncovered issues.

So what are your major takeaways for preparing your child custody agreement?

Ready to settle your custody case? Make sure that you keep in mind the following tips when negotiating and preparing a child custody agreement:

1. Be realistic about your schedule;
2. Prepare yourself to not get everything that you want in your custody agreement;
3. Take family holiday and vacation traditions into consideration;
4. Consider your children’s needs and preferences and whether your custody agreement satisfies those needs;
5. Develop a communication plan with your co-parent and include it in your custody agreement;
6. Plan for worst-case scenario even if you don’t think it is necessary; and
7. Understand that your custody agreement cannot cover everything.

If you do that, you will end up with a custody agreement that works for you and your family for years to come! 

How did you and your co-parent come to a custody agreement? Still have trouble? Did I miss a tip? Please share in the comments below!