If you’re going through a divorce or separation involving children, you’ve likely heard the terms “custody agreement” and “custody order” thrown around. But what do they mean? And what’s the difference?
Don’t worry—we’ve got you covered. In this post, we’ll explain everything in simple terms so you can understand the key distinctions and make informed decisions about your family’s future.
TL;DR – Should You Pursue an Agreement or Court Order?
A custody agreement is when both parents agree on a custody plan together. A court order is when a judge decides the custody arrangement because the parents can’t approve.
You usually want an agreement if possible. Ask a local child custody lawyer for help; they know the rules in your area best.
For example, parents in Albuquerque might hire an Albuquerque child custody lawyer to help create a fair agreement they both approve.
But a court order may be needed for severe issues like abuse, violence, or high conflict between parents. The judge’s order is legally enforced.
The Basics: Custody Agreement vs. Order
At its core, a custody agreement is a written contract between parents (or other parties) that outlines the custody arrangements for a child. This includes details like:
- Where the child will live (physical custody)
- How decisions will be made for the child (legal custody)
- A visitation schedule for the non-custodial parent
What Is a Parenting Plan?
A parenting plan outlines the specific rules and guidelines that parents will follow for raising their child after separation or divorce. It typically covers:
Living Schedule
- What days and nights the child will be at each parent’s house
Example: The child stays with Mom from Monday morning until Wednesday evening, then with Dad from Wednesday evening until Friday evening. The weekends swap between parents’ houses.
Holidays/Vacations
- How the child will split holidays and school breaks between the parents
Example: The child will be with Mom for Thanksgiving and Dad for Spring Break.
Making Big Decisions
- Which parent gets to make significant choices about the child’s life
Example: Mom will make final decisions about the child’s health and medical care. Dad will decide what schools the child attends.
Resolving Arguments
- How parents will settle any disagreements about the child
Example: If they cannot agree, they must go to a mediator before the court.
The critical thing is that both parties must voluntarily agree to the terms of the custody agreement.
Conversely, an order is a legally binding decision made by a judge or court. If parents cannot agree on custody, the court will examine the evidence and issue a formal custody order that outlines the custody arrangements that must be followed.
Think of it this way: A custody agreement is like parents making a deal, while a custody order is a court calling the shots when no deal can be reached.
Why the Difference Matters?
You might think, “As long as we figure out custody, what’s the big deal?” But the way custody is established (agreement vs. order) has some important implications:
Custody Agreements
- Are often faster and less expensive than court battles
- Allow parents to craft customized arrangements for their family
- It can be modified later if both parties agree
- Show the court that parents can cooperate (which judges prefer)
Custody Orders
- Are legally binding and enforced by the court
- It may not perfectly fit your family’s unique situation
- It can only be modified by going back to court
- Suggests that parents cannot compromise on their own
Courts encourage custody agreements whenever possible because they demonstrate parental cooperation and can minimize conflict for the child. However, the court may need to intervene with an order in high-conflict cases.
Hammering Out a Custody Agreement
If you want to pursue a custody agreement, you’ll need to mediate and negotiate with the other parent(s). Here are some tips:
- Put your child’s best interests first. This should guide all your decisions.
- Get organized. Gather documents, schedules, etc., to prepare for discussions.
- Aim for compromise. You won’t get everything, but fair give-and-take is critical.
- Stay flexible. Life changes, so build some flexibility into your agreement.
- Bring in an expert mediator. They can facilitate productive conversations.
The result should be a comprehensive parenting plan covering physical and legal custody, visitation schedules, child support, and other vital issues.
When Custody Orders Become Necessary?
Unfortunately, some situations require court intervention via a custody order, such as cases involving:
- Domestic violence or child abuse/neglect.
- Parental substance abuse issues.
- A parent’s refusal to cooperate or follow temporary orders.
- Threats to abduct the child across state/country lines.
In these high-conflict, high-risk scenarios, the court must establish a custody order that protects the child’s well-being when the parents cannot agree.
Key Custody Considerations
Whether you pursue an agreement or order, some crucial factors come into play regarding custody:
| Physical Custody | Legal Custody |
| Where the child lives | Decision-making for the child |
| Typically, one parent has primary physical custody | Joint legal custody is common |
| Or split 50/50 between homes | Or one parent has sole legal custody |
Focusing on the Child’s Best Interests
When deciding custody arrangements, the most important thing is doing what’s best for the child.
Whether parents agree on a custody plan or a judge makes the custody order, the main focus must be creating a situation supporting the child’s well-being and healthy growth.
Just like the benefits of shared parenting, courts look at many different factors to figure out what custody situation will be best for the child, such as
- The child’s age and any special needs they have.
- Each parent’s ability to provide a loving, stable home.
- How well can each parent make good choices for the child?
- The child’s existing bonds with family members.
- The physical and mental health of the child and parents.
- If there have been any domestic violence, abuse, or safety issues.
- Whether the parents can effectively co-parent together.
The most important thing when deciding custody is making sure the arrangement supports the child’s emotions, mind, and growth.
Modifying Custody Later
As families grow and circumstances change, you may need to revisit custody down the road:
For Agreements
- You can modify it if both parents agree to the new terms.
- The revised agreement should be written and signed.
- Having an initial agreement makes future changes easier.
For Orders
- You must go back to court to request a custody modification.
- Be prepared to show a substantial change in circumstances.
- The judge will decide if a change is warranted and in the child’s interests.
Common Reasons to Modify Custody
- If a parent needs to move for a new job or live somewhere else.
- As the child grows up, their needs and schedule may change.
- If a parent gets remarried or has another baby.
- If a parent’s financial situation gets better or worse.
- If there are concerns about the child’s safety, abuse, neglect, or a parent using drugs/alcohol.
The Process of Modifying Custody
- The parents discuss the changes they want for agreed plans and create a new approved plan.
- For court orders, you have to go to court again and ask the judge to modify the order.
- You need to show proof of why the custody needs to be changed.
- Having a mediator to help with discussions can make it easier for parents to agree.
FAQs
Can a 13-Year-Old Decide Which Parent to Live in the USA?
In most states in the USA, a 13-year-old child cannot directly decide which parent they will live with. The court makes the final custody decision after considering what is best for the child.
However, judges will consider the child’s preference, especially for teenagers. The judge will likely ask the 13-year-old which parent they want to live with and why.
Who Pays Court Costs in Child Custody in the USA?
In the United States, both parents usually have to pay some costs when going to court for custody. This includes fees for starting and giving the custody case to the court.
If you don’t have enough money to pay these costs, you can ask the court to let you not pay the fees. You have to apply and explain why you can’t afford it. Then, the judge will decide if you can get the fees waived or if you still have to pay.
How Long Does a Child Custody Case Take in the USA?
There is no set timeline for how long a child custody case will last in the United States. However, most cases generally take three months to 1 year or longer to resolve.
Final Thoughts
At the end of the day, the key difference between custody agreements and orders is cooperation vs. court intervention.
An agreement allows you to craft a customized parenting plan together, while an order imposes a court’s ruling when you cannot agree.
Whenever possible, aim for an out-of-court agreement. It’s often faster and cheaper, demonstrating your commitment to putting your child first through continued cooperation as co-parents.
However, negotiating a fair custody agreement can be challenging, which is why many parents seek the guidance of a divorce lawyer to help them navigate the legal complexities.
Don’t feel ashamed to involve the court if it’s the only feasible path to protect your child!