The whole point of a legal contract – any contract – is to establish specific terms governing a certain situation. When we’re talking about divorce, we use a separation agreement. When it comes to custody and visitation, we’re either talking about an initial determination or a modification, but the same goal exists: to agree, rather than taking the issues to court and asking a judge to decide.
Custody can be standalone – after all, just because people have kids in common doesn’t necessarily mean that they were married or haven’t already divorced – or it can exist as part of a larger divorce action. This can be confusing, though, because divorce cases are handled in the circuit court while standalone custody cases (whether they’re modifications or initial determinations) are handled in the juvenile court.
In most cases, though, whether part of a divorce or as a standalone custody case, the parties are able – painstakingly! – to reach an agreement about how everything relating to custody and visitation will be handled.
Women tell me all the time that they want to get an agreement in place, and even sometimes suggest that we just include general ‘reasonable and liberal’ language in the agreement. I don’t think that’s ever a wise choice because reasonable and liberal means different things to different people; moms tend to capitalize on the ‘reasonable’ bit, while dads struggle to see past the ‘liberal’ part.
Not only that, but it’s HARD to decide on the details – especially if you, like most people, are trying to figure it out at the point in time where everything is the hardest, tensions are running the highest, and you’re both feeling nothing but mistrust towards each other. You probably both DO agree that you want to keep things out of court – that’s the easy part! – but that doesn’t mean that you agree about how, exactly, you should achieve it.
It might feel like a quick little sidestep, and a convenient one, too, to just agree to reasonable and liberal visitation – but it’s not.
Done correctly, a custody agreement should be a foundation that you can build upon. It’s just that – a framework – that helps both you and your ex (your child’s father) learn what to expect. You have to work through some of the finer points, yes – but, in my experience, its time, money, and effort well invested.
When you go into your post-divorce or post-breakup life and you have a well-drafted agreement, you’ve already taken into account – based on your experiences with each other – the issues that may likely come up and you’ve come up with mutually agreed-upon provisions that you can rely on to make sure that you’re both doing what you need to do.
I’m not unrealistic; I’m not suggesting that you will agree or that there won’t be headaches along the way. I also don’t think that you’ll be 100% thrilled with every provision that gets included. Sometimes, we’re just at the limits of what we can reasonably put in the agreement, and it’s just not going to be considered reasonable (by the court, by his attorney, by your child’s father himself) to regulate every single waking moment of EITHER coparent’s parenting time.
=There’s this tension between what we can do and what the court would allow, and that does basically govern negotiations, too. There’s maybe a little bit more flexibility in collaborative divorce (assuming yours is a divorce), but, in many ways, the collaborative divorce model just isn’t accessible because of its expense. (Which, I would say, as a general matter is MORE than a regular agreement case and about the same as a litigated case – it’s not a ‘cheaper’ option, even if it is pretty unequivocally a better option.)
To put it as simply as I can: there’s a point where the provisions we might want to include cross a line and where the other side just won’t sign, because the court would not require them to do so much.
An agreement is only good if it’s signed. And, at some point, we can throw so much at the other side that they just won’t sign. So, what good is that?
I’ll tell you, dear reader: none at all.
And it’s not because your attorney isn’t a good advocate for you or because she isn’t fighting for you and your kids. It’s just that, well, there are limits. There are limits in terms of what the law allows and there are limits in terms of what the judge will order.
It’s not necessarily that a judge wants or doesn’t want to order these things; it’s that what the judge includes in an order is complicated. She’s limited based on what the law allows, what could get appealed and/or overturned on appeal, or what might open her up to allegations of favoritism. The judge doesn’t necessarily have times to hear the hours and hours of testimony, evidence, and argument she might need to hear in order to form an opinion on a complicated issue.
So, when you go to court, you wind up with a more cookie cutter type order that is unlikely to get overturned on appeal and is – more or less – fair-ish. It’s not a spectacular feat of judicial prowess; it just gets the job done.
Remember, too, that custody, visitation, and child support are modifiable based on a material change in circumstances, so no one – save, probably, you and your child’s father – are that concerned because, if there’s a problem, you can always come back to court. (Though I’m sure that’s little comfort to you, since coming back and forth to court means more time, money, and blood pressure points spent on your case.)
It’s better, if you can, to get an agreement in place. And, ideally, that agreement would reflect, specifically, the concerns you have about your case – not necessarily every single possible provision you could throw in there that might be nice to have. There’s definitely a point where what you’re asking for crosses over into unreasonable territory, so just be mindful.
It’s sort of a slippery slope. We want to be somewhere in between ‘reasonable and liberal’ and ‘we’re controlling every single waking moment of each other’s lives as co-parents’. You need a framework to build on, but you don’t need a cage.
For more information or to request a copy of our custody book or get more information about our upcoming custody seminar for Virginia moms, visit our website at hoflaw.com or give us a call at 757-425-5200.