Me and the ex get along fine, so why would I need an order of custody?
You wouldn’t believe how often I hear this question. And the answer is so self-evident that the question answers itself: what happens when you no longer get along? Well, that is why you need an order of custody.
An agreement on its own is not necessarily enforceable. However, an agreement that has been turned into an order (“reduced to an order”) is quite enforceable. And there is all the difference in the world between the two.
The whole purpose of ANY order is its potential to be enforced by overwhelming authority such that the parties to the order have a very healthy fear of violating it. Without the existence of the potential for retribution for violating an agreement, parties to such an agreement could violate the agreement with impunity. And this is why we have courts and police.
Any agreement (written or oral) you may have with the mother or father of your child with regard to custody and visitation is almost always unenforceable UNLESS it is in the form of a court order. Once your agreement has been “reduced to writing”, in the form of a court order, and signed, dated, and entered by a judge, then your agreement can be enforced. Enforcement is merely the police power of the state.
Enforcement could take the form of a police officer ordering a person to act or refrain from acting, upon threat of arrest and/or incarceration, or it could take the form of a judge ensuring that the parties give full force and effect to a court order, upon threat of a loss of rights (such as a right to be free from jail and a right to have custody of or visitation with one’s child).
You’ve heard the phrase “good fences make good neighbors”? Well, good custody orders usually (but not always) make good custodians. The point of such orders is to explain, in explicit and specific detail, the rights and responsibilities of the respective parents with regard to their respective children. It’s that simple.
Of course, the law is famous for its exceptions to rules and there are at least two (2) exceptions to this general rule. However, each exception is always remedied with a court order (for enforcement purposes). One exception is equitable and one is legal.
The equitable exception is where the parties have made a simple written or oral agreement and have relied upon it for a length of time such that everyone (mother, father, children, step-parents, grandparents, etc.) understands that this is what the parties intended. If a party then violates this written or oral agreement, then the injured party or parties may seek court intervention in enforcing the written or oral agreement.
The legal exception is where the parties have made a written contract or stipulation, which has been signed before a notary public. Again, the presumption would be that the contract or stipulation contains precisely what the parties intended. If a party then violates this contract or stipulation, then the injured party or parties may seek court intervention in enforcing the contract or stipulation.
The court would then hear the case and then decide whether or not it would be in the best interests of the child or children to reduce this written or oral agreement, or this contract or stipulation, to an order. Usually, an order will result, but it will not necessarily contain the terms of the original agreement and could, in fact, be quite different from the original agreement.
Thus, this is all the more reason to have a legal order of custody in the first place, if only to avoid the inevitable mess involved in NOT having one.
So, call me: I can help you.