Informal Custody Agreement

By Victoria McGrath

Mother and daughter at school

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Informal custody agreements range from casual conversations about who will take care of the children on which days to more formal written agreements, drafted through mediation and legal assistance. Informal custody agreements can turn into formal agreements, if the documents are filed with the court and approved by the judge. Then the informal agreements are incorporated into the divorce decree, which sets out the terms of the divorce. Informal agreements often include arrangements between parents who were never married, are temporarily separated or in the preliminary stages of a divorce.

Informal Custody Agreements vs. Formal Custody Agreements

An informal custody agreement is an out-of-court agreement. An informal custody agreement cannot replace a court-ordered custody agreement. The family court does not have any power to enforce an informal agreement that has not been presented to the court in legal proceedings. All agreements presented to the court and approved by the court are formal and legally binding agreements. If the parents decide to alter the custody terms of a court-ordered agreement, they must return to the court to have the changes approved.

Legal Custody and Physical Custody

Both informal and formal custody agreements typically address issues of child custody, child visitation and child support. Child custody includes two types of custody -- legal custody and physical custody. Parents share legal and physical custody of a child if they were married when the child was born or if paternity was established by a court of law. Any change to these equal custody rights typically requires a court order and child custody laws vary from state to state. Without a court order, either parent may be legally able to pick a child up from school and physically take the child across state lines or out of the country.

Child Visitation and Child Support

Informal custody agreements generally cover physical custody, child visitation and child support. Parents agree to either shared or sole custody. When both parents are amicable and communicate well regarding the children, shared custody typically works best for the children. Custody agreements routinely outline daily and weekly schedules, as well as holiday and vacation schedules. For physical custody, the custody agreement addresses which days of the week the children will be with each parent. If one parent has sole custody, the other parent will be entitled to visitation. In this case, the custody agreement will identify the exact hours of visitation; for example, the father will pick-up the children at 6 p.m. on Friday and return them at 6 p.m. on Sunday of each week. In addition, the amount of child support is typically calculated according to the state formula and included in the agreement.

Legal Assistance and Enforcement

Informal custody agreements may be put in writing, to make the terms of the agreement clear to both parents, hold both parents accountable to each other and their children, and protect the children's interests. The agreement can be drafted by a lawyer, mediator or legal service provider. Legal aid services may be available for low-income families. Or, you can consult an online legal document service for forms and assistance. Once an informal custody agreement is drafted, both parents may sign it and keep a copy with them. If a parent fails to follow the agreement, the other parent can go to court and request an official custody order. The informal agreement will not be enforced in court, but it can serve as a starting point in drafting a formal custody agreement.