Drafting a Custody Agreement

Coming to a reasonable custody agreement is one of the best things you can do for your children during a divorce. It cuts down on stress and saves money in the long run – and it makes both parties feel heard and accountable for upholding their agreement. For them to be really effective, custody agreements need to be comprehensive and specific. The following is a list of things you and your partner should consider including in your custody agreement.

All custody agreements should have, at a minimum, provisions regarding the custody, parenting time, and support of the children.

Your custody agreement should cover all the essential items. In New Jersey there is legal custody and physical custody. The custody agreement should cover both issues. Legal custody is who makes the major decisions about the children such as health, welfare and education. There is joint legal custody when both parents make the major decisions together. Also, there is sole legal custody when only one parent makes the decisions. Further, physical custody is who should the children live with. The parent of primary residence is the parent that the child lives with most of time. In the state of New Jersey shared physical custody in when both parents have one or more over nights per week.

Parents need to agree on when each party will be spending time with the child in the custody agreement. This should include during regular school periods, summertime, weekends and holidays. There should also be provisions regarding vacation time during school breaks, and special events, like birthdays or special religious holidays that one parent might choose to celebrate. You might also consider including basic agreements about pick-up and drop-off, and whether a person other than the parent (like a grandparent or babysitter) is eligible to retrieve the child at the beginning of that parent’s visitation time. This is also a good place to include language for the ‘right of first refusal.’ Essentially, this means that if one parent is unable to exercise their visitation (like they will be going out of town on business), then the other parent has the primary right to take care of the child in their absence.

The final basic provisions to include concern child support. You should include the amount the paying parent will be responsible for, the date the payment is due and the method of payment. There should also be information in there about any additional costs that the parties have agreed to, such as payments for child care, health insurance, or extracurricular activities.

Parties will be able to avoid disputes and tension in the future if they include provisions that handle extracurricular activities, midweek communications, agreements to use co-parenting software and relocation language.

Depending on the age of the children, some of the biggest arguments between parents revolves around extracurricular activities. Usually, it is because one parent has unilaterally scheduled events during the other party’s exclusive visitation periods. You should also address payment for any activities (including the cost of equipment, travel, and lessons) in your custody agreement.

It’s always a good idea to consider putting in provisions that set out how the parents can communicate with their children and minimize disruption, especially if there might be long periods of separation between the parent and child. Sometimes, custody agreements will include language that allows the non-possessing parent to call or Skype/Facetime their children during the week, holidays, or extended vacations. Usually, the communications are limited in time and should occur at a set time to ensure the child is available. Including this in your custody agreement tends to head off any disputes about one party feeling shorted on communication with their children outside of their exclusive parenting time periods.

This is a dance that divorcing parents will have to do for the entirety of their children’s lives – so it’s best to set out how you will proceed in a custody agreement. Technology has made it easier than ever for people to communicate, and family law issues are no exception. Some companies have designed software specifically for divorced or separated parents to use to cut down on arguments. Usually, there is a calendar that both parties can access so that they know when the children's activities are, can alert each other as to medical or dental appointments, and send reminders about parent-teacher meetings. There are also portals in which to communicate directly with each other – and the court or another third party can be granted access to review or act as a mediator, if necessary.

Of course, using official family law software is not always necessary. But, parties should consider including other technological means to foster trust and communication. Consider requiring the use of a shared digital calendar, inputting important events into that calendar, and getting consent or confirmation of travel and other issues in writing (such as in text message or emails). Setting out the way you and your partner will communicate about your child after the divorce will help both of you get on the same page and establish expectations long after the case is finalized.

It is inevitable that one party will relocate to another house or city during the minority of the child. Custody agreements should anticipate this reality and allow parties to do so – to a reasonable extent – without having to seek judicial intervention. Some custody agreements will include a geographic restriction or radius limit for moving with the child. For example, the language might state that parties can relocate to anywhere within 30 miles of Hackensack, New Jersey, or perhaps allow a move to anywhere within Bergen County. It is crucial to consider travel and driving time, considering traffic and population when laying out relocation restrictions. This is also a good area to include agreements about whether a relocation would affect parenting time, modifications of child support (to negate costs of travel) and pick-up and drop-off.

It is easy to feel overwhelmed by the prospect of creating a comprehensive and clear custody agreement in New Jersey. The Law Office of Peter Van Aulen is ready to help you. Call 201-845-7400 for a consultation today.