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Without question, the issue of child custody is often one of the most emotional issues that parents will have to face and resolve during the divorce process.  Without question, most parents love their children and want the best for them.  Determining exactly what that is, however, particularly when it comes to custody, can be a difficult decision to make.  Beyond simply thinking about what an ideal custody arrangement might look like, the parties also need to decide the best way to reduce that agreement to writing.  Different options work better for some families than others, so exploring the options thoroughly before making a decision is important. 

Options for Resolving Child Custody Issues 

When attempting to resolve custody issues, parents generally have three options:

  • Create and Sign a “Parenting Agreement”: This is an agreement between the parents that is created and signed entirely out of court.  It may be the result of a mediation or collaborative law process, and is an agreement that reflects the decision of the parents as to what the best custody arrangement is for their family circumstances.  Both parties sign this document, and it essentially operates as a contract between them. 
  • Litigate the Matter and Obtain a Decision from the Court: Traditionally, this is how child custody matters were decided, prior to the recent trend toward alternative methods of resolution.  The parties present evidence before the court during a custody hearing, and the court ultimately makes the determination as to what the custody arrangement will be.
  • Create and Obtain Approval of a Consent Order: Often, parties who wish to combine the benefits of having the flexibility of negotiating the terms of their own agreement, but still want to ensure the enforceability that comes with a court order decide upon a consent order as the best of both worlds. 

What is a Consent Order?

In a nutshell, a consent order is an agreement that is negotiated out of court, setting forth the terms of a custody arrangement, which is then submitted to the court for the judge’s signature.  Once signed by the judge, the consent order is considered valid and enforceable, and has all the same effects as a court order entered after a trial, without actually having to go through the trial process itself. 

As a consent order is technically an order of the court, this means that it is enforceable in the same was as other court orders.  For example, if an official court order is not followed, one party has the right to file a motion for contempt against the other party who is violating the order.  Additionally, if the parties wish to modify the order, they must seek court approval to do so.  When the parties have entered into a separation agreement, by contrast, in order to ensure enforcement, one party must sue the other for breach of contract, which can often be a more lengthy and expensive process. 

When and How to Seek a Consent Order

Certainly, each family is unique, and what works well for one family with respect to negotiating a custody arrangement might not necessarily work well for another. Often, families will choose the consent order option where the spouses anticipate that the might have problems with one another, and are not able to work as cooperatively as is typically required for effectuation of a parenting agreement.  It may also be best if circumstances between the spouses are likely to change … such as if one spouse may move away, take on a more demanding job, or remarry quickly.  In other instances, the parties simply like the option of having the legitimacy and enforceability of a court order that a consent order provides.  Where a consent order exists, if one party violates the terms of the order, enforcement and the application of penalties, if warranted will occur much more quickly than would be the case with a parenting agreement. 

If you decide that seeking a consent order is the best option for obtaining a custody determination in your particular circumstances, the easiest way to set the process in motion is to file a “friendly” lawsuit for child custody.  The term “friendly” is often used as both parties agree to bring the case forward, and there are typically no accusations or combative arguments involved.  The action is usually filed solely for the purpose of bringing the matter before the court in order to submit the agreement for its review.  

The parties will work together, often with the help of an attorney on each side, to outline the terms of a custody arrangement and ensure that it sets forth the wishes of both parties with respect to custody of their children.  After doing so, the parties will then submit the agreement to the court for its review.  After reviewing the proposed document to ensure that it is legally compliant, the judge will sign it, thereby creating a valid and enforceable consent order. 

Take the Best Steps for Your Family Today

Each family is different, but in one way, all families are the same – parents love their children, and want what’s best for them.  Thinking through your particular circumstances, the custody arrangement that might work best, and the best type of agreement or order to reflect those arrangements is important.  Making these decisions is always easier – and the process is more likely to be successful in the long-run – with the help of experienced legal counsel who understands the complexities of family law, and how to apply that knowledge to craft an agreement that works for you.  At The Law Office of Dustin S. McCrary, we would be honored to help you do exactly that.  Call us today. 

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