Should I Sign an Informal Child Custody Agreement?
August 27, 2013 7:52 AM   Subscribe

My ex-spouse and I share custody of our son. He is now in kindergarten five days a week, necessitating some adjustments to his weekly schedule. We have come to a basic agreement, and my spouse wants me to sign this agreement. Even though we are principally on the same page, it feels a bit weird. Should I do it?
posted by toots to Human Relations (34 answers total) 1 user marked this as a favorite
I certainly wouldn't without asking my attorney.
posted by Think_Long at 7:54 AM on August 27, 2013 [7 favorites]

Not without a lawyer, no, you shouldn't sign anything.
posted by phunniemee at 7:54 AM on August 27, 2013 [2 favorites]

Informal nothing. Lawyer it before signing anything. That's what they're retained for.
posted by Pirate-Bartender-Zombie-Monkey at 7:57 AM on August 27, 2013 [1 favorite]

One side note: we have been divorced for a number of years and have developed a decent, agreeable rapport on these matters. Another thing: the agreement will be somewhat temporary, most likely for this school year only. Are these types of things even legally binding?
posted by toots at 8:02 AM on August 27, 2013

This is your ex-spouse, not your spouse. Don't sign any agreements without running it past a lawyer who specializes in family law first.
posted by RainyJay at 8:03 AM on August 27, 2013 [1 favorite]

Rapport, nothing. Lawyer's input, stat.
posted by These Birds of a Feather at 8:05 AM on August 27, 2013 [1 favorite]


They may not be legally binding, but they will be given weight if taken to a court.

posted by corb at 8:06 AM on August 27, 2013 [2 favorites]

toots: Are these types of things even legally binding?

I almost never tell people to lawyer up in AskMe, but this is really really a question for your lawyer. Do not base your child's custody on assumptions and good faith.
posted by Rock Steady at 8:06 AM on August 27, 2013 [1 favorite]

If the changes that are being proposed shift, in any way

- the money arrangement the two of you have
- the amount of time your child will be spending with either of you
- anything you are not fully comfortable with

then I would not do this without a lawyer's looksee. If you guys have been totally amicable and this is just laying out out who is responsible for what rides and you are both in full agreement, I'd be less concerned. Unless there is a good reason to not speak with a lawyer, I would speak with a lawyer.
posted by jessamyn at 8:07 AM on August 27, 2013 [4 favorites]

Definitely don't sign without talking to your attorney.
posted by roomthreeseventeen at 8:07 AM on August 27, 2013

Another side question: even if we operate by the terms of this agreement for one year, the document will carry more legal weight with my signature?
posted by toots at 8:08 AM on August 27, 2013

If you have such a rapport, why does she need it in writing and signed? Wouldn't an email saying "That sounds okay for now. Thanks. -Ex" accomplish the same thing?
posted by small_ruminant at 8:08 AM on August 27, 2013 [6 favorites]

Yes, it will carry more weight with your signature. Also, one year is about how far courts look back when they're making "Best interest of the child" determinations. There are a number of ways this could be used to screw you.
posted by corb at 8:10 AM on August 27, 2013 [4 favorites]

To make it clear why so many people are insisting that you consult with an attorney, you're probably talking about making an alteration to a court order without consulting the court. This is a Bad Idea. As there is presumably a court order spelling out how custody of your son is going to work, trying to make adjustments to that without professional help could get you in a world of trouble.
posted by valkyryn at 8:11 AM on August 27, 2013 [5 favorites]

If it's something minor, like used to spend Tuesdays at her house and Wednesdays at yours and now it's going to be reversed, I can't see why you would spend money on the lawyer. But anything more complicated (e.g. someone is going to have more hours than they used to, or someone is committing to paying for a certain kind of expense) than you might as well run it by your lawyer first. It's not necessarily confrontational -- you're trying to avoid future problems.
posted by The corpse in the library at 8:14 AM on August 27, 2013 [2 favorites]

I am not a lawyer, just a divorced parent.

Informal agreements are fine, often necessary, but once they want a signature? Lawyer. No question about it. Informal agreements are not signed documents.

Yes, it can carry more weight with your signature -- if nothing else it shows that you didn't consider it unreasonable on a temporary basis and so shifts the ground of the argument.
posted by tyllwin at 8:15 AM on August 27, 2013 [1 favorite]

If it's so informal, then why is a signature needed?

Don't sign anything.
posted by eas98 at 8:18 AM on August 27, 2013 [9 favorites]

it feels a bit weird

This is your warning. For all you know, she's already lawyered up and this is a part of a long play to get sole custody.

Don't sign anything without consulting a lawyer.
posted by toomuchpete at 8:24 AM on August 27, 2013 [6 favorites]

Informal agreements are by definition verbal only. Anything in writing requiring a signature is formal. Definitely seek legal advice in this instance.
posted by h00py at 8:28 AM on August 27, 2013

Having said that, I've always been in favour of adults working out their children's needs in a proper manner without having to access courts and/or government agencies. A signed agreement takes things to another level. Talk first but certainly get legal advice if this is something you are uncomfortable with.
posted by h00py at 8:34 AM on August 27, 2013 [1 favorite]

Here's what you say to her. "I promised my lawyer that I wouldn't sign anything she didn't approve. Since this is informal, let's just make it verbal. If you want it to be formal, let's do it officially. What's your pleasure?"

If she wants it in signed, in writing, high ho, high ho, it's off to family court you go.

It's no biggie, but it is a PITA.
posted by Ruthless Bunny at 8:36 AM on August 27, 2013 [10 favorites]

Do you have a tendency to kind of flake on things, or to try to change things last minute? If so, your ex is probably just trying to pin you down. If not, is a little weird.

I don't know. I think you should talk to a lawyer but at the same time I wouldn't expect them to say much more than "you agree? Okay, great, go for it."

Some of these kinds of ideas about your ex trying to screw you all of a sudden sound kinda paranoid to me. I personally would not be upset if a change in visitation meant a change in child support, nor would I expect that my ex would all of a sudden try to get full and total custody after years of calm and agreeable co-parenting. At the same time, you do want to make sure that someone who is an expert can advise you of any pitfalls you or your ex might not understand.
posted by the young rope-rider at 8:36 AM on August 27, 2013

Are these types of things even legally binding?

I'm not your lawyer. Your profile indicates you're in Iowa, and I am not licensed to practice law there. I cannot give you legal advice, or tell you anything about whether you should sign a particular agreement your ex-spouse has drafted. Seek licensed counsel in your jurisdiction.

Having said that... To this general question, the answer is, "It depends." Without going into the distinction between courts of law and courts of equity, the bottom line is that family courts often have considerable latitude, especially when it comes to custody and child issues. Unless there is some clarifying provision (1) in Iowa [or the relevant state's] law or (2) in your specific existing agreements and court orders, then it's unlikely an attorney can tell you this document will or won't be "legally binding" without knowing more facts about your current situation. And those facts would likely factor into a judge's eventual analysis.

Again, I'm not qualified to give you legal advice. But I can tell you that in situations different from yours, when I'm asked a similar question ("Should I sign this?"), one response I often give is, "Why does the person want your signature?" Asking for a document to be signed indicates that someone is thinking about a future eventuality. So okay, what's the person thinking about? Is he worried something will happen, and if so, what? Is she hoping to be able to do something, and if so, what? If you can't answer why, then you should ask.

I also often tell people to trust their gut. When your gut tells you something "fees weird," that's a red flag. A red flag doesn't automatically mean you shouldn't do something, but it does mean you should be careful and inquire further. When in doubt, develop the situation. If your relationship is amicable, this should be easy enough to do. It's possible a short, friendly conversation can resolve everybody's concerns. Good luck.
posted by cribcage at 8:38 AM on August 27, 2013 [5 favorites]

It's either informal, or a signed document. It ain't both :)
posted by wrok at 8:39 AM on August 27, 2013 [2 favorites]

The lawyer up advice can be put another way: assume the future worst case scenario in your relationship with your ex: what have you committed to or potentially changed in the eyes of the law?

We don't know. You don't know. A good lawyer should, and will guide you on the risks and relevant case law.
posted by MuffinMan at 8:40 AM on August 27, 2013

I am divorced with three kids although they are and were older than kindergarten at the time of the split. In terms of the parenting plan, we had nothing in writing. We simply agreed to one and have lived up to it since. We both recognize that while we may have a schedule, the rest of the world is not tied to our schedule. We are somewhat flexible based on kid's school schedule, needs and wants.

I think if your agreement to date has worked and it has been informal, I would not change that to a formal one. Formal agreements make it harder to be flexible. You normally have junior on Tuesday nights but junior has a school play or you have a work obligation and want to change to Wednesday that week? With an informal agreement, this is simply a conversation with ex about it. With a formal agreement, you could be setting legal precedent by making certain changes.

One note, the reason behind the request to sign something could be school related. The school will certainly want to know who is responsible for pickup and making decisions. If they are told you are Wednesday parent and ex shows up to take junior, they could, in theory, hold that up until they are convinced about who has custody or who is legally ok to take junior home. I have seen the place for physical custody disagreements to play out being at the end of the school day.

If things are amicable, talk it out with ex then make decision to sign, have attorney read then sign or not sign.
posted by JohnnyGunn at 8:51 AM on August 27, 2013 [2 favorites]

Ex-, I'm happy with our plans, but I'd have to see my lawyer about it before signing it, and that's a significant cost. I'm committed to making shared custody work, and I think we can do this without more lawyering.

A coffee-stained, 2 paragraph document that my ex- and I both signed saved me my house when we divorced. A lawyer advised me to write it but did not otherwise help with the document. Just on general principles, I always read stuff I'm asked to sign, and consider my signature to be binding. I totally agree that you should trust your instinct on this.
posted by theora55 at 9:08 AM on August 27, 2013 [3 favorites]

I see a lot of borderline hair-on-fire don't-sign lawyer-up above that I don't really understand. Agreements between people - of any kind - exist to make life better for both parties. If this agreement does not do that then absolutely, be concerned. This principle is so basic that the law even recognizes that you cannot have a contract between people where one side gets nothing out of it and that when you do it implies it's not a good/legal contract at all.

However, you say that you're basically on board with what it says. So the questions are, what does 'basically' mean/what would it mean to be held to it, and why does your ex want this written down now?

Sure, you can jump right to thinking possibilities like "this is a part of a long play to get sole custody" but is that more probable than that s/he's recently seen some family shenanigans where other people got bit in the ass in court by not having ANY agreement? This represents my document, document, document bias but quite frankly I'm more sympathetic to the desire to codify something.

We have this cultural "love conquers all" and "no business between friends" attitude in the US but if good fences made good neighbors in the previous century I'd say that good pre-considered legal agreements make good ones now. Fear bad agreements, embrace good ones.

In your shoes I'd do three things.

One, ask the ex "I'm not saying no, but why do you feel like we need to have this written down now?" I think there's great reasons in favor of it, really, and no reason to be scared of it. Which leads to...

Two, ask yourself why it matters to you if this would be legally binding. The reality is that anything can be legally binding if you can get a court to compel it. Some things, like court-filed/compelled custody agreements, can be made binding more quickly and easily. But if you're willing to spend the time in court and attorney fees, you might get a scribbled note on a matchbook turned into a judge's order.

But so what? Does this mean you dislike the terms? Or you don't think you can honor them, or you know you're prone to not hold up your end of the bargain? If so then that may be your answer right there for why your ex wants this in writing. Which leads well to...

Three, use this as a good point to goad you into thinking about how this sort of thing is going to go in the future and whether it says something about the nature of your relationship with your ex. You're tied to this person, for better or worse. If they're seeming confrontational and you're concerned about conflict then that's a great sign you should seek a lawyer, perhaps, or maybe someone to be an unbiased mediator.
posted by phearlez at 9:36 AM on August 27, 2013 [3 favorites]

@phearlez: the law even recognizes that you cannot have a contract between people where one side gets nothing out of it and that when you do it implies it's not a good/legal contract at all.

That's what I thought, until we got involved in franchise litigation a month ago, at which point we discovered that unfortunately, the above is not true at all, for a variety of legal reasons specific to our situation.

Which is to say, no signatures (paper) or otherwise written agreements (email) without a lawyer. Especially in a situation where, even though the agreement is between Mr. Smith and Ms. Smith, the courts will be primarily concerned with the well being of Smith Jr.
posted by rada at 10:26 AM on August 27, 2013 [2 favorites]

Yeah, there's some valuable human insight in this thread, but I'd suggest you ignore external links to definitional authorities. The concept of contractual consideration is somewhat trickier than it is often presented, and adhesion contracts are not typically a relevant concept to custody arrangements. No offense to anybody, truly, because there's actually some great "Here's what I'd do as a person" insight in this thread. But legal analysis is a different animal, and IT staff are not (usually) lawyers. Seek licensed counsel in your jurisdiction.
posted by cribcage at 10:29 AM on August 27, 2013 [3 favorites]

One thing I would like to point out in addition to all the great information above:

Personally, I'm always put on guard when someone asks me to sign something but doesn't immediately offer the reason why it's needed. In other words, "I really need you to sign this," or "I need to have this in writing," holds much less weight with me than "I really need you to sign this so that I can X," or "I would really like to have this in writing so that I can ensure that Y happens smoothly."

I generally don't like to jump right to the bad faith assumption, but really think about this, when you ask someone for a favour, don't you usually explain why you need them to go out of their way for you? "I need X from you," is rather brash. The polite thing to say would be "unfortunately, X happened and it would be so helpful if you could do Y favour for me." The polite way is much more likely to get results, and if she really wants you to sign this, why wouldn't she act in the most polite and honest possible manner to further the chance of getting what she wants?

I can see why this feels weird to you.
You were essentially asked to do your ex the favour of signing something, but with little to no context surrounding why. That breaks the social contract of politeness in a way that looks like a lie of omission could be present. That's the reason that I would seek legal council, because this looks suspicious. It may very well not be; maybe she just wanted to prevent flakiness on your part, and didn't want to damage your rapport by taking an accusatory tone. However, if your instincts are correct, then the penalty for ignoring them could cost you way more in the long run than a few hundred dollars worth of legal council would right now.
posted by Shouraku at 12:25 PM on August 27, 2013

I also recommend a mediator. This person will be:

1) Cheaper than a lawyer

2) Out to help you both get what you want

3) Able to provide a structure where you are sure you are getting what you need out of this agreement

Also, a good idea to maybe have a couple smart friends read it over first, to see if you're missing anything.

Other than that, I think getting your agreement in writing is a good idea for avoiding future conflicts.
posted by latkes at 12:48 PM on August 27, 2013

We have this cultural "love conquers all" and "no business between friends" attitude in the US but if good fences made good neighbors in the previous century I'd say that good pre-considered legal agreements make good ones now. Fear bad agreements, embrace good ones.

Here's the thing. You don't know that this is a good agreement, legally speaking. I'll illustrate with a silly example, but I think I'll get my point across. Let's say the whole of the agreement is:

"Toots totally promises to pick Baby Toots up from school every day, if possible.


Seems cool. Then one day you are not able to pick Baby Toots up from school. No problem, you think, the agreement said "if possible". You ask your ex to do it. Her lawyer then calls to tell you you are in violation of your custody agreement, and your ex is suing for full custody. In court it is revealed that in legal terms, "if possible" only counts if you are prevented from doing something by an act of war, and by that definition you should have picked up Baby Toots. You are, legally, in violation and you lose custody.

You don't know exactly what the agreement you are signing will mean to a court, should it come to that, so you really should have someone who does know (or at least, is more likely to know than you are) take a quick look at it, to make sure you are not in danger of falling into any legal pitfalls -- intentionally or unintentionally. I'm not saying your ex is out to get you here, but if you don't have legal counsel when you sign something like this, you don't know what you might be getting yourself into.

With something like child custody, I would not be willing to take that kind of a risk.
posted by Rock Steady at 7:24 PM on August 27, 2013 [1 favorite]

you can jump right to thinking possibilities like "this is a part of a long play to get sole custody" but is that more probable than...

Odds are, my house will never be robbed, so I guess I don't need that alarm system, after all! It's probable that my house will never catch on fire, so I guess smoke detectors are a waste of money.

I probably won't get into any car accidents this month or get pulled over, so letting my insurance coverage lapse is no big deal.

Probabilities are great fun until that unlikely event that you consciously ignored actually happens.

We're all answering without the text of the agreement on which a signature is required, the content of whatever court-approved custody arrangements are, and probably a lot of other relevant information.

The long-play to get custody is a worst-case scenario used to illustrate that there are a whole lot of unknowns out there. The OP signing a document that he's already unsure about could unwittingly put him on a course that he decidedly does not like or want.

I'd say there's a lot of good advice about steps between here and lawyer town, but I cannot envision a situation where it would be a good idea to sign this document without some sort of consultation.
posted by toomuchpete at 9:39 AM on August 28, 2013

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