When you separate from your spouse or partner, you have two options on how child custody will be decided. Either the court can determine custody or you and your ex can come to an agreement relating to how you all will care for your children. By reaching an agreement, parents can avoid costly court hearings and the animosity associated with an adversarial court battle. When parents are able to come to a child custody agreement, we recommend that they put the agreement into writing and file it as a “Consent Judgment” with the court. The court will sign the consent judgment, making it an enforceable order of the court. It is important that your agreement be enforceable so if either party fails to abide by the terms of the consent judgment, then you have recourse to ensure that the agreed-upon terms are reinforced. We believe that, if possible, custody agreements are preferable since they keep conflict low, save the parties significant money in legal fees, and work toward the best interest of the children. This blog article will discuss the top five considerations when developing your custody agreement with your ex.
1. Legal Custody – Sole or Joint Custody
There are two types of legal child custody in Louisiana – sole and joint custody. Sole custody means that only one parent makes the decisions regarding the child’s upbringing. Joint custody means that both parents contribute to the decisions regarding the child’s upbringing. An award of sole custody is very rare in Louisiana.
When the parties share joint legal custody, a domiciliary parent is usually designated. A domiciliary parent is the parent that has authority to make all decisions affecting the children unless the plans provides otherwise. Louisiana recognizes three categories of domiciliary parent: (1) educational; (2) medical; and (3) religious (if that is applicable to your family). Some families have no domiciliary parent, some families have one domiciliary parent, and some families share domiciliary status with each parent taking one or two categories.
2. Physical Custody Schedule
Like legal custody, physical child custody can also be sole physical custody or joint physical custody. Only in very rare circumstances, will a parent get sole physical custody. Physical custody will either be supervised or unsupervised. Most physical custody is unsupervised and ranges from every other weekend (less physical custody may be warranted in certain circumstances) to 50/50 physical custody. Below are some common joint physical custody schedules.
2-2-3 Schedule (alternating)
3. Tax Credits
While technically a part of child support, you will want to determine which parent will be claiming the children on their taxes each year. Some common scenarios for claiming the children on your taxes are listed below:
- One parent claims all children every year
- The parents alternate years (one parent taking odd years, the other parent taking even years) for all children
- When there is more than one child, each parent claims at least one child every year
While not required, it is advisable to include a holiday schedule in your custody agreement. This way, there are no surprises as to where the kids will be during holiday time. Common holidays to include in your holiday schedule are:
- New Year’s Day
- Martin Luther King Jr. Day
- Lincoln’s Birthday
- Presidents’ Day/Washington’s Birthday
- Spring Break
- Memorial Day
- Independence Day
- Labor Day
- Columbus Day
- Veterans Day
- Christmas Eve
- Christmas Day
- Winter Break
- New Year’s Eve
- Your child’s birthday
Here are some common ways that parents divide and share holiday time:
- Alternate holidays every other year: You can assign holidays to each parent for even years and then swap the holidays in odd years. With this arrangement, you won’t miss spending a holiday with your child more than one year in a row.
- Split the holiday in half: You can split the day of the holiday so that your child spends part of the day with each parent. This arrangement requires planning and coordination because you don’t want your child to spend holidays traveling all day.
- Assign fixed holidays: You can have each parent celebrate the same holidays with the child every year. If parents have different holidays that they think are important, each parent can have those holidays every year.
You can use any combination of these ways to divide and share holiday time to create holiday arrangements that allow your child to enjoy family traditions and spend quality time with both parents.
Some holidays have special considerations because both parents usually want to spend time with the child on or near the holiday.
Here are some ideas of how to share and divide these days:
- Your child’s birthday: You can schedule a short visit for the parent who doesn’t have the child on the birthday, give both parents birthday time in the schedule, or the parents can alternate having the birthday.
- Parents’ birthdays: Your child can spend time with the parent on the parent’s birthday.
- 3-day weekends: These holidays include Martin Luther King Jr. Day, Presidents’ Day, Memorial Day, Labor Day, and Columbus Day. Parents can alternate the 3 day weekends, split the weekends, or give the Monday holiday to the parent who already has the weekend.
- Mother’s Day and Father’s Day: Usually your child spends every Mother’s Day with the mother and every Father’s Day with the father.
- Thanksgiving weekend: One parent can have Thanksgiving Day and the other parent can have the weekend, you can give both parents time on Thanksgiving and on the weekend, or parents can alternate having Thanksgiving and the weekend.
- The Christmas holiday season: One parent can have Christmas Eve and the other parent can have Christmas Day, one parent can have Christmas and the other parent can have winter break, you can make New Year’s Eve and New Year’s Day into one holiday and the parents alternate having it.
You may also want to include guidelines for vacations in your custody agreement. Things to consider regarding vacations are:
- How many vacation days will each parent have every year?
- How many consecutive vacation days may each parent take?
- Do both parents have to agree on out-of-state vacations?
- Do both parents have to agree on out-of-country vacations?
- How much advance notice must be given for a vacation?
- Will you require the vacationing parent provide an itinerary including any of the following: dates and location of travel, flight information, names and contact information of hotels, and/or names of people travelling with the family.
- Will the parent not taking the vacation be able to make up any missed custody time before or after the vacation?
5. Co-Parenting Guidelines
Louisiana courts encourage that all custody agreements incorporate the Co-Parenting Guidelines. These guidelines set forth certain expectations for parents to work together toward the best interest of their children. The standard Co-Parenting Guidelines are listed below:
- To share information with each other about the child in a timely manner so as to coordinate and facilitate their parenting together. This information may include, but is not limited to medical, educational, social, psychological, and religious aspects of the child’s life
- All material, child sharing, court related and financial communications between the parents shall occur at a time when the child is not present or within hearing range. Communication regarding these issues shall not occur at times of exchange of the child or during telephone visit with the child.
- Neither parent shall say or do anything in the presence or hearing of the child that would in any way diminish the child’s love or affection for the other parent, and shall not allow others to do so.
- Should either parent require child care for twenty-four (24) hours or longer when the child is in his/her care, the other parent shall have the first option to provide such care.
- Each parent shall always keep the other informed of his/her actual address of residence, mailing if different, home, cell and work telephone numbers and any changes within twenty-four hours of such change occurring.
- Each parent shall inform the other as soon as possible of all school, sporting and other special activity notices and cooperate in the child’s consistent attendance at such events. Neither parent shall schedule activities during the other parent’s scheduled parenting time without notice to the other parent.
- Neither parent shall move the residence of the child out of state or within the state at a distance of more than 75 miles from the other parent without giving the other party written notice as required by La. R.S. 9:355.1 et seq.
SEEKING COUNSEL FROM AN ATTORNEY
Establishing a thorough custody agreement on the front end alleviates the potential for conflict when difficult situations arise when co-parenting with an ex. If you and your spouse are currently working through a custody agreement, please feel free to email me for my firm’s free worksheet that helps address each of the above-mentioned considerations.
After you and your spouse have made a determination as to each of these factors, it is recommended that you consult a child custody attorney to assist in drafting the agreement that is to be entered with the court. You can find more information about my firm here or call the office at 888-507-7003 to speak with me about your case.