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Can’t We Just Agree? (The Dangers of Modifying a Custody Agreement Without Going to Court)

Hands of parents fighting over their son each pulling him their way.

Many parents work well together after a divorce, and sometimes they make changes regarding custody and child support without going to court, because they are getting along so well.  Minor changes in a visitation schedule are fine, as long as both parties agree.  However, major changes like a child going to live with the other parent, or reducing or stopping child support payments, can cause big problems if you don’t seek court approval.  When a custody arrangement is adopted by the Court, it becomes a court order.  The child support calculations also become part of the Court order.  Only a Court can modify those provisions.

To demonstrate the issues, let’s suppose a couple has a young boy and they divorce.  The mother has primary custody of the child and the father is ordered to pay $400.00 per month in child support.  When the boy reaches the age of ten, he asks to spend more time with his father and the parents agree that he can live with his father.  Over the summer, they move the child into the father’s house and enroll him in school in the local school district.  The father stops paying child support, since the child is living with him.  The mother visits with the child every other weekend, just like the father did previously.  Everyone is getting along just fine.

Unfortunately, when the boy is twelve, both parents plan a trip to the beach for Spring Break and have a huge fight over who is taking the child on vacation for the week.  The mother says the child can’t live with his father any more and she immediately picks him up and enrolls him in school where she lives.  It’s mid-year and he has to say good-bye to all his friends and disrupt his studies.  The father threatens to take her to court and the mother files for contempt against the father, saying he owes her two years of child support payments, which amounts to $9,600.00.  Suddenly, the father is faced with fighting for custody, to avoid the sudden disruption to his son’s life, and fighting a contempt charge which might leave him owing $9,600.00.    The father is in a difficult position, because the mother has continued to be the primary custodian for the child the entire time and the Court can enforce the child support order for the entire time the child was living with the father.

This story demonstrates the dangers of making major custody and child support changes without going to court.  If both parents agree that a modification is appropriate for their child, it’s a simple process to draft the appropriate documents and have them approved by the Court, making the modifications official.  If you need to discuss your custody or child support situation with a family law attorney, please call 678-535-3232 for an appointment (serving Paulding County, Bartow County, Cobb County, Douglas County, Haralson County and Polk County).

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Serving Paulding County (including the cities of Dallas and Hiram) and surrounding counties; Cobb County (including the cities of Marietta, Acworth, Kennesaw, and Smyrna), Douglas County (including the city of Douglasville), Bartow County (including the cities of Cartersville and Emerson), and Polk County (including the city of Rockmart).