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When Should You Review Your Custody Agreement?
Child custody arrangements often pose some of the most challenging decisions that any separating couple has to make when navigating a divorce. Parents who are in the process of going through a divorce can either cooperate on devising their own custody arrangements or petition the Probate and Family Law Court to come up with a custody arrangement.
Whatever arrangements are decided on are not cast in stone. Many things can change following the divorce and these can have an impact on the arrangements made before the divorce took place. At some point in time, one or both parents may decide it is time to review the original custody agreement. If the original agreement was made by a court order, then the court will have to consider any changes. In doing so, the court is required to make changes which are in the best interests of the children.
What is a custody agreement?
The two most contentious sets of decisions that have to be made when a divorce is imminent are what to do with shared or marital assets and how to make arrangements for caring for any joint children of the marriage. Before a divorce can be agreed to in Massachusetts, the couple who are divorcing must come up with a workable separation agreement that covers these most important decisions. The court prefers that the two spouses work through any differences they have and make a decision about both asset distribution and child custody arrangements themselves. The thinking is that when spouses cooperate on forming a separation agreement without having to resort to the court for help, the more likely it will be adhered to.
In practice, depending on the reasons for the break up, amicable decision making may not be apparent and spouses may have to turn to others to help them work through their differences. There are several agencies that offer divorce counseling and individual spouses can hire family law attorneys to help them with an agreement. It is only when none of this seems to work or one or the other spouse contests the divorce happening anyway that it becomes the court that acts as a decision maker for both asset distribution and a custody agreement.
A child custody agreement must cover the following decisions:
- How much each parent will be involved in making decisions about the ongoing welfare and upbringing of the children: this is termed ‘legal custody’. Typically, both parents share legal custody after a divorce, but in some cases (for example because of a history of child abuse in the family), sole legal custody is sought.
- Which parent is going to be responsible for providing a home for the children on a day to day basis, including responsibility for schooling, clothes, health and welfare – this is termed ‘physical custody’. It is more common for sole physical custody to be the pattern after a divorce, but in some cases, especially when the two divorced parents live near each other, physical custody may be shared.
- Making an arrangement for visitation rights for the parent who does not have physical custody if custody is not shared. This should include scheduling weekend and vacation time.
- Making arrangements for child custody support. This means deciding on how each parent will contribute to the care and welfare of the joint children financially.
When should a child custody review be considered?
There are many reasons why the original child custody agreement should be revisited and a new agreement made, even if it means petitioning the court to make a modification if the court was the entity that made the agreement in the first place.
Common reasons for considering a custody agreement review or modification include the following:
- one of the two parents is not following the original agreement;
- one or both parents have moved interstate or overseas;
- the needs of the children have changed as they grow older;
- one of the parents has been abusing or neglecting the children while in their care;
- other circumstances have changed.
1. One of the two parents is not following the original agreement
When a custody agreement is made before a divorce can be finalized, it is expected that both parents keep to their part of the arrangements made to care for children of the marriage. If one or the other parents is no longer sticking to their part of the agreement, it may be necessary for a modification in the agreement to be made, even if it is just for the court to make the responsibilities outlined in the agreement more enforceable.
2. One or both parents have moved interstate or overseas
The closer geographically the two parents are after the divorce, the easier it is for a custody agreement, shared custody or visitation times to work. However, if one of the parents moves much further away, especially if it is on the other side of the country or overseas, then it is time for the original agreement to be reviewed. Shared physical custody isn’t going to work anymore and weekend visitation scheduling probably won’t work either. In most cases, both parents will want to share major decisions about the welfare of the children and much can be resolved by phone, email or video conferencing, but any changes will have to be included in a new agreement.
3. The needs of the children have changed as they grow older
Child custody agreements are typically made to cover the ongoing care and welfare of what the state considers ‘minors’, i.e. those under 18. The younger the children were at the time of the divorce, the more likely that their needs will change as they grow older. This will have to be addressed in any review of the custody agreement. Individual children may prefer to swap the parents they live at home with; the financial needs will probably grow, so decisions about education and health needs will need to be made, too. One common reason for a custody review is if one of the children develops a long term major health problem or becomes disabled, necessitating new decisions to be made about ongoing care.
4. One of the parents has been abusing or neglecting the children while in their care
There may be a need for the major care giver to cede responsibility for day to day physical custody if it can be shown that children have been abused or neglected. Similarly, visitation rights by the parent who is not the major care giver may need to be revised if neglect or abuse has taken place.
5. Other circumstances have changed
Custody agreements may need to be reviewed for many other reasons. Re-marriage, change in employment, changes in financial ability to provide child support, spousal support, ability to keep to a visitation schedule are all potential factors that could be reasons for a custody agreement review.