Custody Agreement

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Custody Agreement

A Brief Introduction About Custody Agreement

A custody agreement is a legal document that provides the details of the custodial responsibilities related to a child when the parents are getting a divorce. When a couple gets divorced, they need to agree on the division of responsibility for their child. It will clearly define which parent will be entrusted with physical or legal custody of the child, which parent will have greater rights concerning custody of the child, and why. Visitation rights of the other parent will also be specified here. There will be a clause on child support and whether any other party like grandparents or close relatives could be considered or not.

Child custody rights come into play once the divorce and separation proceedings are underway. For the child custody agreement to be valid and enforceable according to the applicable laws of the state, the same must be approved by the judge.

Such agreements can also be entered into by parents who are not divorced but have been separated for a long time.

Who Takes a Custody Agreement – People Involved

A custody agreement is usually entered into by a couple who are getting a divorce or being separated from deciding who will get the child custody rights. It will determine which parent will have legal custody of the child, the visitation rights of the non-custodial parent. Though the parents of the child are the parties involved in a custody agreement, other parties like stepparents, grandparents, close relatives, or adoptive parents could also be part of the agreement. The agreement is customized to incorporate the requirements of both the child as well as the caretakers. However, the primary goal of this agreement is to ensure that the best interests of the child are of utmost importance.

Purpose of the Custody Agreement – Why Do You Need It

A custody agreement is required because it is an official document that can be enforceable in a court of law. A parent may refuse to honor a verbal agreement regarding custody and visitation rights if the other parent does not pay child support. A parent may have found a new partner and may be unwilling to share custody of the child. These result in constant disagreements between parents, and this harms the wellbeing of the child. Neither parent can ask for police protection if there is no custody agreement.

When you have an official agreement in place approved by the judge and drafted according to the local laws relating to child custody, there is no room for any dispute. The custody rights of both parents are clearly defined concerning physical as well as legal custody of the child. The share of the custody will also be stated if one parent gets more physical custody than the other.

There is complete transparency in the agreement concerning child support. Provisions for any other party, for example, a close relative or a grandparent, to take custody are also mentioned.

The agreement stipulates the visitation rights of the non-custodial parents.

Contents of the Custody Agreement – Inclusions

The custody agreement must contain the names of the parties to the agreement, the parents of the child. It must also include the effective date of the agreement, the name or names of the child or children as well as their date of birth, legal custody, and decision making, and residential custody and access rights.

Under the section legal custody and decision making, the parent who will get sole and exclusive final decision-making rights will be mentioned. This parent will take decisions, including but not limited to, educational issues, religion, and health. The non-custody parent will be granted the opportunity to be a part of the decision making process.

Under the section residential custody and access rights, the parent (mother or father) getting the residential custody of the children will be named. The children will be residing with this parent, and the non-custody parent will be providing the child support. In the unfortunate event of the death of this parent or being incapacitated or being unable to discharge his or her responsibilities towards her children, the non-custody parent will take the overall responsibilities of the child or children.

As far as visitation rights are concerned, the non-custody parent will have the right to access his or her children on specific days apart from the birthday of the child, birthday of the non-custody parent, holidays in all the years as well as vacations.

The parent who has been granted custody of the child or children can have access to them for several hours if they are in charge of the non-custody parent.

How to Draft a Custody Agreement

While drafting a custody agreement, the following points need to be kept in mind:

  • The names of the parties to the agreement and the relationship shared between them. In this case, it would be the divorced husband and wife
  • The parent will get the exclusive custody of the parent. This parent will take an all-important decision regarding the child’s education, health, or religion. The non-custody parent will, however, get an opportunity to participate in these decisions.
  • Time spent by the child with parents: Will one of the parents be given the right for more physical custody of the child as compared to the other parent.
  • Visitation schedule for the non-custody parent: The agreement should contain the visitation schedule on the parent who has not been granted residential custody and access rights. The schedule should contain the dates of the specific holidays as well as the vacations during which the non-custody parent can visit the child
  • Ensure that the laws make the agreement of the state concerning child custody
  • The amount of child support to be paid by the non-custody parent to the parent who has been granted exclusive custody of the children should be clearly stated along with an escalation clause, if any.

Negotiation Strategy

Since a custody agreement involves a child of a couple who is divorced, they can discuss the terms and conditions of the agreement before they finalize it. The agreement should be designed in such a way that the best interests of the child in question are not compromised, and both parents are satisfied with the arrangement in the agreement.

Benefits & Drawbacks of the Custody Agreement


  • Since this agreement documents the responsibilities of the respective parents concerning decisions involving the child or child support, there will be no dispute between the parents. This would not be possible if the agreement were verbal
  • As this agreement is a legal document, if a parent is threatening the other, then police support can be sought. It can also lead to the offending parent to lose his or her visitation rights altogether.
  • There is a provision in the agreement that in the event of the death of the parent who has exclusive custody, the non-custody parent gets custody of the children. A close relative or grandparent can also be incorporated in the agreement as an alternative. This provides much flexibility about custody.


  • The courts sometimes rule in favor of the parent who has a steady income to provide for the child. This parent may not necessarily be the best choice when it comes to the interests of the child is concerned.
  • The parent might influence the decision of the child in certain cases, and the child might want to avoid the non-custody parent. These factors cannot be so easily determined while awarding custody to a parent.

[ Also Read: Joint Custody Agreement ]

What Happens in Case of Violation

When a custody agreement is violated, it generally means that one of the parents has not complied with the terms laid down in the child custody/visitation order. You have many options when it comes to remedial action. You could get in touch with the police if the issue seems to be too complicated to be resolved between yourselves or if the safety of your child is at stake. You could opt for a temporary restraining order or protective order.

You should inform your attorney regarding any untoward incident involving your child due to the other parent. The attorney will send a legal notice to the other parent informing him or her about the penalty for not complying with the court order. If the violation continues, contempt of court can be filed against the other parent. Contempt of court signifies will disobedience with regard to the court order. The penalty for contempt of court includes either fine, imprisonment, or both. The court will grant you the attorney fees and any other incidental expenses associated with filing the contempt of court, so you should proceed with it.

The violating parent will need to appear in court and determine if any amendment to the current order needs to be made.

A custody agreement is significant as in the absence of a written agreement, and the parents might not take their responsibilities seriously. In case of a threat from one parent, the other parent cannot take police protection. The parent who is entrusted with providing child support might find a new partner and decide not to provide for the child. The parents of the child may have frequent disputes(1) which would not be in the best interest of the child.

A custody agreement comprises the names of the parents of the child and whom the custody of the child is being awarded. It will clearly mention which parent has been granted exclusive custody of the child. The visitation rights of the non-custody parent will be defined. The amount required by the custodial parent to the non-custody parent will need to be mentioned along with any provisions for escalation in the future. A clause relating to the violation of the terms of the agreement will also be mentioned(2).