Parental agreement on child custody: what should it contain?

When is court approval required and when is an informal agreement sufficient?

Court approval of the agreement is mandatory, especially when the divorcing parents agree on the custody of the minor child. According to the Civil Code, the court must approve the agreement on custody and maintenance, otherwise the marriage cannot be dissolved. The court also assesses whether the agreement is in the best interests of the child.

Different rules apply to unmarried parents who are separating. They can agree out of court without the need for court approval, as long as there is no dispute between them. However, if they do not agree on custody, either parent can also file a petition to modify the child’s circumstances and the court will then decide.

The advantage of court approval is legal enforceability – if a parent breaks the agreement, it can be enforced. On the other hand, the disadvantage is that it is more difficult to change – to change a court-approved agreement, a change in circumstances must be demonstrated. An informal agreement is more flexible but not legally enforceable. In practice, parents often opt for a combination – have the basic arrangements approved by the court and deal with the more detailed rules by informal agreement.

What must the parents’ agreement contain?

The parents’ agreement should clearly define what child custody will look like to avoid future conflicts. First, the form of custody must be determined – whether the child will be given sole custody to one parent, alternating custody, or whether the parents agree to joint custody.

Another important part of the agreement is the determination of child support. If the child is entrusted to the sole care of one parent, the other parent is obliged to contribute to the child’s maintenance. In an alternating custody arrangement, maintenance is usually determined for both parents, taking into account their financial situation. The agreement should include the specific amount, the frequency of payments and the method of payment.

The parents should also regulate the child’s contact with the other parent, not only in normal times but also during vacations, holidays or emergencies. The agreement may specify how the parents will be informed about the child’s school and health matters, who will make decisions about leisure activities and how emergency expenses will be shared.

A court-approved agreement usually contains only the basic parameters, while an out-of-court agreement allows for more detailed arrangements of the day-to-day aspects of child care.

Out-of-court settlement: When and why conclude it?

An out-of-court child custody agreement is appropriate when the parents can reach an agreement without court intervention and want to have clear rules for raising the child. It is often entered into by unmarried parents who want to continue working together after separation, or by divorced parents who want to adjust some of the details of custody beyond the court agreement.

The great advantage of an out-of-court agreement is its aforementioned flexibility. Parents can continuously adjust the custody arrangements according to the child’s current needs without having to file a motion with the court. For example, they can set out rules for handing over the child, payment of extraordinary expenses, communication arrangements or principles for deciding on important issues such as education or health care.

A well-formulated out-of-court agreement helps prevent future disputes and contributes to better communication between the parents, which is crucial for the child.

How and when can the agreement be changed?

The parents’ child custody agreement is not immutable – it can be modified if the child’s circumstances or needs change. The options for change vary depending on whether the agreement is a court-approved agreement or just an out-of-court arrangement between the parents.

If the agreement has been approved by the court, changing it requires proof of a substantial change in circumstances. This is typically a change in the parents’ financial situation, the child’s health or a significant change in the child’s needs (e.g. starting secondary school). In such a case, the parent must petition the court to modify the custody or support arrangement. The court will then assess whether the change is in the best interests of the child.

The parents can change the out-of-court agreement whenever they need to. However, if the parents stop following the agreed rules, conflicts can arise that eventually lead to court proceedings. Therefore, it is advisable to consider the formality of the court order whenever a substantial change is made.

Agreement as prevention of disputes between parents

A well-formulated child custody agreement can make an important contribution to preventing conflicts between parents. Clearly set rules help to avoid misunderstandings about parenting, financial provision for the child or the organisation of time with the parents. When custody arrangements are clear and agreed by both parties, the risk of future disputes that could negatively affect the child is reduced.

In cases where there is tension between parents, mediation may be useful. The mediator helps the parents find a compromise and formulate an agreement that is acceptable to both parties.

The agreement should be seen as a tool to help the parents work better together, not as a mere legal document. The better the rules are set, the easier parental cooperation will be and the more stability the child will gain.