If you don’t want to have a trial in your court case, you have to settle your case first. In a divorce or custody context, settlement is achieved when there is a signed agreement negotiated between the parties. In a divorce case, you would sign and negotiate a separation agreement – a legal contract that divides all the assets, liabilities, and responsibilities between the parties. A separation agreement includes resolution of custody and visitation if the parties have minor children in common – whether born to or adopted by the parties.
A custody agreement, though, resolves a custody case – so one where (1) the parties were never married, (2) the parties are married but are not yet divorcing, and/or (3) where custody and visitation are being modified from a former agreement or court order.
Either way, it’s a legal contract. It is often negotiated between attorneys (one for each party; in a family law case you can’t share an attorney), but it is also possible to go through mediation (whether through the court or a privately hired mediator) or draft an agreement yourself.
A custody agreement only resolves issues related to custody and visitation. Specifically, whether legal custody is awarded jointly or solely, whether physical custody is going to be awarded primarily to one parent, shared between the two parents (though not necessarily 50/50), or split (meaning that different children have different custodial arrangements, kind of like The Parent Trap, though ideally much less egregious), and how parenting time with be divided.
We usually divide legal holidays as well as longer breaks from school and include details about how the parties will communicate, how vacations will be managed and scheduled, the amount of child support awarded, and so on. We also include some more general provisions about not making disparaging comments in front of the kids, sharing information from schools and/or doctor’s appointments, and when (or if) FaceTime calls will be allowed on the other parent’s parenting time.
Because the only limitation in a legal contract is the creativity of the drafters, we sometimes address specific, more niche, issues, too. If someone is struggling with drug and/or alcohol addiction, we’ll specify that no alcohol can be consumed while the kids are in their care (or for 24 hours beforehand), for example. If we’re worried about introducing new romantic partners, we can institute a restriction on overnights or come up with a specific set of rules for how (and when) new partners can be introduced to the kids. We can create first rights of refusals, rules about birthday parties, and be specific about how travel and vacations will be planned and information shared.
There aren’t a lot of hard and fast rules, except that specificity is ideal. It’s tempting to just lean towards the whole ‘reasonable and liberal’ visitation thing – because it’s easier to agree to something generic and meaningless than it is to work through complicated, sometimes emotionally volatile, arrangements – but that’s often a recipe for disaster. Whenever possible, it’s helpful when coparents go into their coparenting arrangement knowing exactly what to expect – that way, no one will be surprised and hurt or angry because things didn’t turn out to be what they expected.
We don’t really care about his hurt feelings, but since custody and visitation are modifiable based on a material change in circumstances, it is in our best interests to try to craft an agreement that allows the parties to work together to avoid continued litigation.
Theoretically, it is possible to petition to modify custody and visitation over and over again – as often as 6 months to a year after each determination – until the children turn 18. That’s not a situation most people want to find themselves in, so it’s often ideal to be proactive and come up with an incredibly detailed plan.
That’s a major advantage you get working with an attorney. We know the typical areas where problems usually arise, and we have provisions in our general form agreement that are designed to address those issues. Where unique issues are presented, we’re usually better situated than non-lawyers to draft provisions that seek to deal with those problems.
It’s always a bit of a catch 22. We want to resolve potential issues, but we also don’t want to craft provisions in a way that (1) allows your ex MORE control and interference in your life after your divorce or custody case is finalized, or that (2) gives him ammunition to file additional show causes or modifications for failures to do what he thinks you should do. We want to put in provisions that help provide guidance; we don’t want to micromanage every detail of your life to the point that you feel like you have no flexibility or that your child’s father can look over your shoulder with respect to every single issue you face in your life.
The short answer is yes – you can draft your own agreement, whether for custody or divorce. In either case, though, it’s potentially risky. There are often things that we see pro se people (people who are trying to represent themselves without an attorney) put in agreements that are worse than what their husband’s (or child’s father’s) attorney would put in.
So it’s important to do your research, to understand your entitlements, and to understand how the law works in Virginia. It’s not enough to just ‘feel’ like it should be one way and then to try to draft an agreement that says what you think it should say. Whatever you put in should be based on research.
Keep in mind that you don’t necessarily have to hire an attorney to work with one. You could also just meet with an attorney a couple of times, as you draft and negotiate your agreement, to seek review and insight. It doesn’t take a retainer; you just pay the attorney’s hourly rate for the amount of time that you need. That way, you can be sure your agreement is as strong as possible – and you avoid issues, like the one we saw recently where there was a self-negotiated separation agreement and no reconciliation clause.
An attorney’s job is two-fold: (1) to resolve the issues in your case today, and (2) to prevent issues later on down the line from costing you tremendously in time, money, and blood pressure points. We haven’t done a very good job – or you haven’t done a very good job, if you’re drafting it yourself – if you’re back in court on show causes or petitions for modification every 6-12 months between now and whenever your child turns 18.
For more information, to request a copy of our custody book for Virginia moms, or to get more information about our custody seminar, Custody Bootcamp for Moms, visit our website at hoflaw.com or give us a call at 757-425-5200.