Child Custody: Is a Verbal Agreement Enough?

  • By:Raven Ash
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It is no secret that separation and divorce are stressful events, and that stress only increases when there are children involved. Kids add an extra, complicated layer of custody and child support. That extra layer requires negotiations and agreements, examining your schedules, possibly hiring child care assistance, and wrestling with how your family is going to cope with this new arrangement. Sometimes a schedule falls into place on its own and the parents simply follow it based on it being what they’ve “always done.” Other time, parents may reach a verbal agreement on custody, child support, or both because the “split” was amicable and, so far, there have been no issues with exchanges or co-parenting. It’s always great when parents can agree, and it definitely reduces the stress (emotional and financial) that is caused by court proceedings. But what happens when that agreement is never committed to writing? Or, asked another way, why should the agreement be put in writing even if the parents agree and everything is going well?

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So why get it in writing?

The short and simple answer is “better safe than sorry.”  It is the unfortunate reality that people do not always stick to their word and, in a highly stressful and emotional situation, people often change their minds about what they want or think is the best course of action, either on their own or after getting “free” legal advice from friends and family members.  It is certainly possible that you can have a verbal agreement about visitation and everything will work out and both parties will fully cooperate, but is it worth the risk if that changes?  When it comes to your kids, the answer is almost always a resounding “no.” I guess you can see where this is headed…

Since I started practicing law, the single piece of advice I’ve given more than any other has been to “get it in writing.” This is the best practice whether you’re dealing with a lease (yes, people actually have verbal lease agreements, but that’s an entirely separate topic), splitting your property, or deciding on a visitation schedule for your children.  Without a written agreement, whether it be in the form of a “contract” or a consent order, it can become very difficult to enforce the schedule you have in place if something goes wrong.  Plus, if something does go wrong, the only way you can attempt to enforce a verbal agreement will be through litigation – a time consuming and costly process. So, I will continue repeating my mantra to everyone reading this post – get it in writing!

Custody Agreements

The good news is that following that advice can be pretty straightforward, especially if you already have a schedule in place.  By negotiating and drafting a child custody agreement you can get all of your terms in writing, which everybody then signs before a notary.  If somebody fails to stick to the agreement, they can be sued for breach of contract or modification of the agreement and the court can step in to enforce the terms of the agreement, which are clearly laid out and defined ahead of time.

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There are certainly pros and cons to this approach, and you should discuss which one is the best option for you and your family before putting pen to paper.  If you already have a verbal agreement for child custody and/or support in place (or are in the middle of setting up a visitation schedule), contact us to see if a child custody agreement is right for you. Also – a word of caution about using online templates – they are often used in multiple states, so sometimes they can include terms and conditions that are not enforceable in North Carolina or that contradict! So even if you don’t want to hire an attorney to handle everything for you, you should definitely have an experienced family law attorney look over it before you finalize it.

What about a consent order?

A court-based alternative (or a “step up”) from a child custody agreement would be a consent order. A consent order is, basically, a method by which you can file your custody and/or support agreement with the court, which can be enforced by the court if one of the parents does not comply. This can be a better option than a child custody agreement because you are giving the court the power to enforce the agreement from the beginning, instead of relying on suing the other party in a separate law suit if they do not cooperate. The down side of a consent order is that modifying the agreement requires a trip back to the courthouse and the approval of a judge. Determining whether a consent order or an agreement is best should be discussed with an attorney. Ultimately, whether you do it via consent order or custody agreement, one thing is absolutely certain – put it in writing!

Ultimately, whether you do it via consent order or custody agreement, one thing is absolutely certain – put it in writing!

Here at Apple Payne Law we are happy to talk to you about which option may be best for your family or discuss alternative options if you are unable to reach an agreement about child custody and/or support in North Carolina.  Feel free to contact us to schedule a consultation or you can even schedule your own consultation online now so that we can discuss your options and help ensure you AND your children can have the best possible results during these stressful life changes.

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