(Hons), BVC, LL.M, P.C.H.E
GETTING divorced can be a stressful experience which affects every aspect of your life from how and where you live, your household duties, your funds, your working life, and your relationships with family, friends and associates.
Uncontested divorces are more common than contested divorces, as individuals getting divorced appreciate the need to make their own arrangements in terms of the children of the family and property. In this article, we will look at some of the elements that should be included in a custody agreement.
A custody agreement should contain the following: custody arrangements for the children; maintenance or child support; visitation and access; decision making and the duration of the agreement.
1.Custody: Child custody refers in our jurisdiction sole or joint custody. Custody includes legal and physical custody but the distinction is not made in our laws. Sole custody is not automatically awarded to the mother; however, it is generally the preferred option especially for young children (under the age of 12). The parent that has sole custody would usually make all the major decisions with regard to the child or children of the family including education, religion, medical and dental care. In our jurisdiction, it would also mean that this child or children of the family reside with that parent. On the other hand, joint custody means that both parents share in the parental duties and responsibilities of the child or children of the family, and that the children live with both parents. In some cases this is not practical if the parents do not live near each other and/or their schools, and so the living arrangements are fashioned to suit their needs as a family.
2.Maintenance: also referred to as child support in other jurisdictions such as the United States is the agreed amount that one parent usually the non-custodial parent/ father will give the mother to assist with the needs of the child or children on a monthly basis. For ease of transfer of funds, a bank account can be set up specifically for this purpose in the name of the children where the deposits are made at agreed times of the month. The amount agreed will reflect how much the father is able to contribute based on his income, earning capacity, property and other financial resources and other responsibilities carefully balancing this against the needs of the children.
3.Visitation and access: a schedule should be introduced to determine when the children will be spending time with each parent. It is important to consider a flexible schedule around birthdays, holidays, special activities at school and other social events to accommodate the child or children being able to spend time with both parents. For example, it may be agreed in a joint custody arrangement that the child will spend week days with one parent and weekends with the other. However, Mothers’ Day and Fathers’ Day falls on weekends and sometimes so might a birthday of the child or parent. In any event, birthdays and other special events should also be scheduled to avoid possible disagreements.
In court orders and consent orders, the term ‘reasonable access’ is often used. Children need a routine; it provides security and comfort to them during this change in the family structure to know exactly what their schedule will be. School holidays should also be carefully discussed and planned in a custody agreement. However, flexibility of how the children spend their time should be also permitted and communicated between the parents.
4.Decision making: it should be agreed which parent will be making the major decisions concerning the children. In some circumstances, where the parents live in close proximity to each other after the divorce, the parenting plan can allow for both parents to be actively involved and make all decisions together. However, on occasion, it may be necessary for one parent to shoulder this responsibility in cases of emergency and the like.
5.Duration of the agreement: periodic reviews of the agreement, possibly every eighteen months, or depending on the age of the children every five years to take into account changing circumstances of the parents and the children is a useful way to monitor the effectiveness of the agreement.
Custody agreements can be drafted at any stage of the divorce proceedings and signed by the parties. If it is done prior to the divorce being finalised, it can be incorporated into divorce proceedings or after the divorce has been finalised once it is not contrary to any ruling of the court. For example, if the court granted the mother custody of the children and a year later the parties sign an agreement agreeing to joint custody, they must apply to the court to vary the court order to include the new agreement. Either way, we would strongly recommend that you consult your lawyer to assist you with this process.
(Ms. Trudy O. Glasgow is a practising attorney and mediator in Saint Lucia (and has also taught law at University level in the UK)*
This column is for general use only, for advice specifically for your case, please see your lawyer.)
Next week: Children and divorce