How to Create a Custody Agreement

Learn how you can avoid an expensive, stressful court battle over child custody by reaching an agreement on a parenting plan.

By , Attorney · Cooley Law School
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When you're splitting up with your child's other parent, you'll need to figure out your arrangements for parenting your child. The least expensive and quickest way to do this is to come up with an agreement rather than fighting it out in court. A custody agreement is a contract that details your parental rights over the child, where the child will live, how much time each parent will have with the child, and other important issues concerning your child. Different states use various terms for these custody agreements, including parenting plan, parenting time schedule, or custody and visitation schedule.

What Should We Cover in Our Parenting Plan?

Your custody agreement should be specific to your family's needs. To work well, however, most parenting plans should include at least the following:

  • an allocation of physical and legal custody between the parents
  • a schedule for the time each parent will have with the child or children
  • how you'll handle the child's transportation for parenting time, as well as the associated costs
  • steps you'll take when disputes about parenting time come up, such as counseling or mediation
  • which parent will get child-related tax credits
  • how you'll deal with any future changes to the agreement, and
  • which parent will pay child support, and how much those payments will be.

Physical and Legal Custody

One of the most important aspects of the custody agreement is how you'll allocate physical and legal custody between the parents.

  • Physical custody refers to where the child will live the most time.
  • Legal custody refers to parents' rights to make important decisions for their children, including medical care, education, and religious upbringing. Some states use different terms for this decision-making authority, such as "parental responsibility."

You and the other parent may agree to share either or both physical and legal custody. For instance:

  • When you agree to joint legal custody, both parents will need to consent to major decisions about the child's upbringing.
  • If you agree to sole legal custody, only one of you will have the right to make these major decisions unilaterally.
  • Joint physical custody means the parents each will have the child for a significant amount of time, but it doesn't necessarily mean an exact 50/50 split.
  • When one parent has sole or primary physical custody, the child will live with that custodial (or residential) parent, while the noncustodial parent will have visitation.

Most parents (and judges) prefer joint legal custody, but it can sometimes lead to problems. If the parents don't agree about something like surgery, vaccinations, or even gender-affirming care, they'll have to go back to court to have a judge resolve the dispute for them—which can be expensive and time-consuming. To minimize this potential problem, you might agree that each parent will have a tie-breaking vote on particular issues. For example, one of you might have the final say about where the child will attend school, while the other parent has the final say about religious training. You also could agree that if you have a dispute about medical issues, you'll defer to the opinion of the child's pediatrician.

Parenting Schedule

With either joint or sole physical custody, your agreement should include a schedule for the specific times when the child will be with each parent. For instance, you might agree that your child will primarily live with one parent but will spend every other weekend, alternating holidays, and extended periods of summer or other school breaks with the noncustodial parent.

The schedule should also include details such as when and how each of you will drop off or pick up the kids for parenting time, and how you'll communicate with each other when something unexpected comes up. If you and your co-parent live far apart, your agreement should also address who will pay for the transportation costs.

Child Support

Some people believe that if parents share physical custody, neither will pay child support. That's not true. But custody arrangements can affect the amount of child support one of you will owe under your state's child support guidelines. While those guidelines are based largely on parental income, many states also take parenting time into account. Still, even when both parents have their child for nearly the same amount of time, the higher-earning parent often has to pay some amount of child support to other parent.

Because of the relationship between custody and child support, most parents who want to reach a settlement agreement will negotiate both issues at the same time. When you're filing your divorce papers, you'll usually include a child support worksheet used to calculate the amount of support.

You might also agree about each parent's responsibility for some child-related costs that aren't necessarily included in basic support under the guidelines, such as contributing to higher education costs or paying for extracurricular activities or private tutoring.

Tax Credits

Your agreement should state which parent will claim tax credits and exemptions for your child or children. Be aware, however, that you'll need to follow the Internal Revenue Service (IRS) rules for child tax credits, child and dependent care credits, as well as claiming a child for the dependency exemption.

Other Provisions in Custody Agreements

You and your co-parent may agree to include any other provisions in your parenting plan that serve your child's best interest. For example, your agreement might include:

  • the methods you'll use to communicate about custody issues (such as by text, phone, or email)
  • how each parent will introduce the child to a new significant other
  • whether and when parents may have new partners stay overnight when the child is in the home, and
  • how you'll handle any future changes to the parenting plan (more on that below).

Getting Help Creating a Parenting Plan

You can save time and money by creating your own custody agreement. You should start by learning about your state's laws on child custody, including any minimum requirements for parenting plans. Nolo's book, Building a Parenting Agreement That Works, includes a sample agreement as well as worksheets for creating a parenting plan. Also, if your state has a court-approved form for parenting plans, you can use that form to create your agreement. You can usually find these forms by searching online (typically on your state court's self-help website) or calling your local court clerk.

If you need help reaching an agreement, you can participate in child custody mediation. In fact, if you haven't already agreed by the time you file for divorce or another custody-related court proceeding, the courts in many states or counties may require you to participate in mediation. Along with helping you identify solutions to your disagreements, most mediators will help draft a custody agreement once you've worked out the details.

If mediation doesn't work, both parents usually need to hire lawyers. Then, the two attorneys will typically negotiate the terms of a custody agreement. But in those rare cases when the parents can't reach a settlement even with their lawyers' help, it's especially important to have an experienced family law attorney representing your interests—and your child's best interests—in a custody trial.

How Do You Make an Agreement Official?

Your custody agreement must be in writing, signed by both parents, and approved by a judge before it will become an official court order. If you've agreed on custody by the time you file for divorce, you can include the parenting plan along with your other divorce papers.

And if you've also agreed on all the other issues in your divorce, you'll be able to take advantage of the time and cost savings of an uncontested divorce. In that case, you may not even have to appear in court, depending on the rules in your state. A judge will review your agreement along with the other paperwork and, if it serves your children's best interests, will sign it and issue your divorce decree, including the custody orders based on your agreement.

If you've reached a custody agreement but still have disputes over other issues in your divorce, your attorney will handle the next steps.

Can You Change Your Existing Custody Agreement?

Parents may agree to modify their existing parenting plan, as long as they follow any requirements in their original custody agreement dealing with how they'll handle modifications. Here again, they'll need to submit their revised agreement to the court for a judge's review and approval. If approved, the judge will issue a new, updated custody order.

Without a new agreement, the parent who wants to change the existing parenting plan will have to follow the state's laws on custody modifications. Usually, those laws require the parent to prove that there's been a significant change in circumstances that affects the child's welfare, and that the proposed modification would be in the child's best interests.

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