During a divorce, a couple will address many important issues – but of all those issues, child custody is often the most important. After all, to most parents, nothing matters more than their children. Understandably, most parents want to be sure that they can negotiate and decide upon a custody arrangement that truly works best for their children and their family’s lifestyle and routine.
In an ideal world, this would always be easy – and sometimes, an ideal custody arrangement that satisfies both spouses can be determined fairly quickly. In other cases, it takes more time and negotiation. For this reason and so many others, having the right attorney who can guide you through the process and work toward a successful outcome for everyone involved is essential.
It is also helpful to understand the various options available to address custody issues and the pros and cons of each. A “consent order” is one option that many couples may not be initially aware of, but that can be quite helpful, depending upon the particular circumstances involved. Let’s take a closer look at the various available custody options together.
Common Options for Addressing Custody
Parents who are facing custody issues have various options to resolve those issues. Two of the more commonly used options include:
- Negotiate, Draft, and Sign a “Parenting Agreement”: Increasingly, couples who have decided to divorce are choosing to resolve as many issues as possible outside of a courtroom. This is a wonderful option for many reasons. Typically, it can save a great deal of time and money as couples can negotiate issues on their own and reach an agreement on what matters to them without the need for lengthy litigation by their attorneys. Importantly, this also reduces the stress level of everyone involved and helps the entire process to go more smoothly and efficiently. Perhaps most importantly, negotiating and agreeing to solutions outside of a courtroom gives couples the freedom and flexibility to achieve the outcomes that work best for their family and lifestyle. There are any number of ways to reach an adequate agreement. Some families choose mediation. Others try collaborative law. Still others participate in lawyer-led settlement negotiations. There are several options, but the important thing is reaching an agreement and putting that agreement into writing. After doing so, that agreement becomes binding on the parties unless they later make any modifications.
- Courtroom Litigation: Although out-of-court agreements are excellent options for couples who can communicate and cooperate effectively, they aren’t necessarily the best option for everyone. Sometimes, for any number of reasons, it may be best for a couple to proceed with their issues in a courtroom. In some cases, this may be due to an imbalanced power dynamic in the relationship if one spouse is abusive or otherwise mentally unstable. In other cases, the pain and intense emotions associated with the divorce may be too much to allow for effective communication and negotiation. Whatever the reason, allowing the judge to decide the issues may be the best choice. This can be particularly true when it concerns an issue as important as custody. In these cases, the parties, through their attorneys, will present their evidence and make their arguments to the judge. The judge will then review the entire case and issue an order. That order will contain the judge’s directions on custody and all other issues between the parties. Upon entry by the court, the order becomes binding, and the parties will be required to follow its directives unless and until it is later modified by the court.
These are two options for resolving issues that are commonly used by couples during a divorce. There is, however, a third option, known as a “consent order”. A consent order is essentially a hybrid that gives the parties the flexibility to negotiate solutions to their issues while still ensuring the enforceability associated with a court order. Let’s take a closer look together at how consent orders work.
Why Choose a Consent Order?
A consent order is typically negotiated and drafted entirely outside of court. After the parties have negotiated, discussed, and resolved their issues and crafted an agreement with which they are both satisfied, they can submit the agreement to the court for a judge’s approval and signature. Why is this important? That’s an understandable question to ask. Essentially, it comes down to enforceability.
An agreement that is negotiated and signed outside of a courtroom is technically a contract. As a result, when one party violates the agreement, the remedy for the other party is essentially pursuing a breach of contract claim. Because a judge approves a consent order, it is technically an official court order upon entry by the court. As a result, if it is violated, the parties essentially have the same remedies they would have if an order drafted by the court were violated. This means that one party can file a motion to hold the other party in contempt. Being held in contempt can carry any number of penalties, including even jail time if that is found to be warranted by the court.
In addition to enhanced enforceability, a consent order is more difficult to modify than a regular out-of-court agreement that the parties sign. Any request for modification must be submitted to and approved by the court, as opposed to an out-of-court agreement, which the parties can modify at any time if both agree.
When and How to Seek a Consent Order
Often, parties decide to seek consent orders when there is some concern that one spouse may fail to respect the terms of the agreement. This concern may be based on the behavior of one spouse during the separation, or it may be suspected based on the dynamic involved in the relationship before the divorce. In still other circumstances, there may be an expectation of change in the near future. One spouse may expect the other to move away, remarry, or otherwise experience a life change that would affect carrying out the agreement. Whatever the reason, one or both spouses may simply want the peace of mind that comes with knowing that the agreement has the power of an official court order.
If a couple determines that a consent order is the best decision for their situation, the easiest way to begin the process is to file what is often referred to as a “friendly” lawsuit for child custody. Unlike a typical litigation experience, “friendly” custody litigation will not involve contentious arguments or the presentation of excessive amounts of evidence. Instead, it is a way to “fast forward” the matter and bring it to the court’s attention as quickly as possible.
Upon receiving the parties’ proposed agreement, the court will take the matter under review. Generally, this will consist of ensuring that the agreement has addressed all important issues and is in keeping with the law. Ideally, if the parties have had the assistance of their attorneys and drafting the agreement, this will be the case. At that point, the judge will then sign the agreement and enter it as an order, thereby making it an official and binding order of the court.
Regardless of whether or not you believe a consent order is the best choice for your family, if you have children, you’ll ultimately have to confront and address custody issues in one way or another during your divorce. When you do, you’ll want to be sure that you have an attorney who knows and understands the law and can guide you toward the best choices for your particular circumstances.
The Law Office of Dustin McCrary- We’re Here For You
Regardless of what issues you may face during your divorce, it’s important to remember one thing – you never have to face those issues alone. You need an attorney who understands where you are and knows how to help you get where you want to go. You need an attorney with knowledge and experience who can help you resolve the issues that matter most to you. You need a team like ours.
At The Law Office of Dustin McCrary, we’re passionate about divorce. Why? Because we know that as difficult as divorce can be, sometimes it’s the best choice for your family and your future. When you make that choice, you want to trust that your case is in good hands. You want to know that your rights will be protected and your best interests will be pursued. We’ll do exactly that. If you’re ready to get started, give us a call. We look forward to speaking to you soon and learning how we can help.