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Contract or Court Order for custody?

post #1 of 5
Thread Starter 

My xh and I are doing our separation agreement as a contract rather than a court order.  However, my lawyer says that most of the child custody agreements go into a court order and recommends that we do this as well.  I'm just wondering which is to my advantage?


My xh doesn't want custody of the children but he does want to have the right to visit them.  He sees them a couple times a week for dinner but that it all at this point.  He hasn't started to pay child support yet but that would start once our divorce is finished.


From what I understand, a contract agreement would be something that he and I could change if we both agreed to it and we wouldn't have to go through a court.  By having a court order there is more legal muscle if something happened (like if he didn't pay support).  Being in contempt of court would mean possible jail time, etc.  


But I also wonder if it might leave me more vulnerable to changes in the custody arrangements.  If he decides he wants to have shared custody then he could go to a judge and ask for that, even if we both don't agree to it, right?  I suspect he would easily get partial custody if he asked for it since there really aren't any reasons for him to not have the girls.


If we stick with a contract, then he can't get custody unless we both agree to it.  But then if he took the girls or didn't pay support I don't have the same legal protection, from what I understand. 



I doubt that this would ever happen.  He isn't very interested in being a dad, he just wants to hang out with the kids once in a while.  But he has a new GF and I've noticed that he is starting to talk about having them more on his own now.  I'm assuming this is because he would have her around to help him with the girls.  Not sure that will last, though.  We are on pretty good terms, too, so it is hard to imagine that things would go bad, but I want to be smart going into this. 


I've spent over a year trying to get our separation agreement finished (due to a very slow and unresponsive lawyer).  I want to just get this whole thing done, but also want  to make sure that I'm doing the very best thing.  


Has anyone here done the custody part of the agreement as a contract rather than a court order?  Any light to shed on the advantages vs. disadvantages? 

post #2 of 5
He can go to the court at any time to push for more custody whether you do a contract or not. A plan signed by a judge is actually harder to change. If you don't have an agreement approved by a judge he isn't bound by anything and if he decides one day to keep the kids for the week there is nothing you or the police can do about it. You can work out the plan together and agree to it then submit it through the courts easily and it can be changed easily if you both agree and with some difficulty if you don't. I think it is the safest route.
post #3 of 5
Thread Starter 

Thanks for the explanation.  That is very helpful!  


Sounds like I should move ahead with the court order as suggested by my lawyer.  It means we might have to wait a bit longer to get things wrapped up, but is probably worth it.  

post #4 of 5

With court orders- if you both agree, you don't actually have to go through the court to change your behavior. I know that my dad got to see me a lot more than the court set (he also paid WAY more child support- I don't know why the court ordered such a small amount). My in laws were divorced and also agreed outside of court to have the dad take the kids every weekend rather than the few hours a week the court had ordered- they never went to court to formalize it. People also won't show up or will cancelled scheduled visitation, which sucks. If the parents can get along, I think it's quite common to unofficially change the rules without going through court, because that can be expensive and time consuming. Families needs naturally change as the kids grow. It can be a little risky if the parents get into a fight and one tries to go back to the court order and the other wants to stay with the new status quo, I'm not sure what would happen in that situation.


I don't think it's okay to let a person skimp out on child support, though, if you want to lower the amount of child support I'm pretty sure that NEEDS to go through court so the person doesn't get in trouble.

post #5 of 5
The advantage to a court order is that a court will enforce it. A contract is useless. Unless you get a judge to sign off on it, which would then make it a court order.
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