As an experienced Somerset, NJ divorce and family law attorney, I can tell you that the answer is yes, of course! But I don’t advise it, because when you and your ex alter your child custody arrangements on your own, you are creating more problems than you are solving.
Who suffers? Ultimately, your children. Read on to find out how you can best protect your children and your parental rights.
Can I Modify My Child Custody Agreement?
The Child Custody Agreement
How a child custody agreement is reached varies by state, but in general, it is negotiated as part of your divorce and a court decree is entered setting forth the child custody terms. When parents agree on what living and legal arrangements are best for their children, the process goes smoothly.
When parents disagree, this is where the court steps in, attorneys negotiate, and a compromise is reached. Most often, compromise satisfies neither party and there are continuing ill feelings. But at least there is a court order in place, and either you or your ex could ask the court to step in if one of you fails to comply with it.
Generally, the initial child custody agreement will establish who has physical and legal custody, and whether there is joint custody shared between the parents or one parent has sole custody.
Physical vs Legal Custody
In most states, legal and physical custody are different rights. The child lives primarily with the parent who has physical custody. Either parent or both may have the right to make decisions for the child, and this is called legal custody.
When parents are married, both have physical and legal custody of their children. When married parents divorce, these rights must be either divided or shared.
Joint Custody vs. Sole Custody
These are what they say they are: where children live with both parents, this is called Joint Custody. In this situation, both parents as a practical matter often retain joint legal custody.
Sole Custody is the term for when one parent has both physical and legal custody of a child. Usually, for the other parent to lose these rights, there is a hearing and the judge will make that determination based upon factors that vary by state.
Asking the Court to Alter The Child Custody Agreement
Parents who change the terms of child custody through the courts are doing the most they can to protect their rights as parents because the court issues an order memorializing those changes. Thereafter, the new child custody terms can be enforced by the court should one party fail to keep to them.
Altering the Terms of Child Custody on Your Own
Of course, you and your ex can agree to change the child custody arrangement outside of court. It’s quick, easy (assuming you both agree), and cheap in that there no attorney fees or court filing fees. But beware of the following pitfalls of changing the child custody agreement on your own:
The court will not and cannot enforce your new child custody terms.
If your ex wakes up one day and decides not to stick to the new child custody arrangement, there is nothing you can do about it. Only a court order is legally binding on your ex. There is no way to enforce your informal agreement with your ex.
Your ex can get the court to enforce the terms of the original child custody agreement.
You might be acting in good faith and sticking to the changes you and your ex worked out. But your ex could still haul you in front of the judge and demand that the court enforce the original child custody order. That would be well within his rights, and the court would find that you are the party who violated the order.
Changes in child custody may work out at first, but if you allow one informal change, where does it end?
It is common for an ex to take advantage of the situation when you are willing to make informal changes, either planned or on-the-fly. Your life could become a hell of variables and resentment, with your ex constantly demanding little changes to the child custody schedule and you feeling powerless to say no because you allowed such changes in the past.
In short, making informal changes to child custody might seem convenient and harmless at the time but you end up laying the groundwork for future conflict between you and your ex. Didn’t you go through the pain of divorce to end that conflict? Your children also suffer, not only from the revived conflict between you but from the uncertainty in their parenting schedule. Parents who remain civil, a calm, stable environment, and a predictable schedule all help children heal from divorce.
Let the court help you and your children, and your ex, move forward in an orderly and predictable way by memorializing any needed change to a child custody agreement with a court order.
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