Have you ever wondered what a California court does with agreements made by the parents regarding California custody matters? Would a California judge accept the agreement, reject the agreement, or, even acknowledgement the agreement? In my California Family Law Practice, I am constantly asked by prospective clients whether a California judge would allow the prospective client to introduce evidence of the parties’ previous agreement regarding custody. Does this sound familiar: “I, Father, agree to terminate all my parental rights to our child if Mother agrees to never ask me for child support?” After the agreement is put in writing, the parents complete the ceremony by going down to the local notary’s office and have the document notarized by both of them. Fast forward one year from when the agreement was notarized, father has a change of heart and wants to be in the child’s life. Mom, relying on the notarized document, refuses to allow any contact between father and child. Consequently, the father is forced to resort to the court for assistance. Consequently, father files a motion with the court asking for joint physical and joint legal custody of the child. What do you think? Will this agreement be upheld by the Court?
As is the classic case when it comes to California family law custody cases, there is no black and white answer. As with every issue affecting the best interest of the child, the court will look to the terms of the agreement and make an independent determination. While the Court is allowed to accept the parties’ agreement, the court is equally empowered to not accept the terms of the agreement. For example, an agreement cannot include a provision to terminate the court’s jurisdiction regarding the minor child.
Consider the following scenarios:
- An agreement that says, for instance, , “We, the parents, agree to forever terminate the California court’s jurisdiction over our child regarding any matter such as custody, visitation and support. Only we, the parents, have the legal right and authority to make decisions regarding our child. And, we, the parents, agree that neither parent is ever allowed to go to court to attempt to void this agreement . . .” This type of agreement will not be recognized by the court as against public policy and as against the child’s best interests. For those of you who do not like this outcome, consider the following: would it be okay for parents to then mutually agree that it’s okay for a child to never see a doctor, no matter what, because it’s against their religion—knowing, in advance, that to deprive their child of medical assistance would lead to certain death?
- An premarital agreement that says, for instance, “We, the parents, agree than even after we marry, we will raise our child in the father’s faith only.” This type of agreement will also not be upheld in court as against public policy and against the child’s best interests.
- A stipulated agreement that says, for instance, “my rights, as parent, are forever terminated as agreed by me and the other parent.” This agreement will also not be upheld by the court as it will be considered as against public policy and against the child’s best interest. Why, you may ask? Well, first, who is speaking for the child? In most cases, the parents are making this type of agreement because it serves their best interests. For instance, Parent A pays Parent B $100,000 to agree to terminate Parent’s B’s legal rights. There is one instance, however, where the court will uphold the agreement. It is when the agreement is made in contemplation of a second-parent or stepparent adoption.
- Now, let’s compare: an agreement that says, “We, the parents, agree to share joint legal custody and joint physical custody of our child.” This type of agreement is usually upheld since the default of the California courts is to ensure, whenever possible, that a child has both parents in his/her life. It is also acknowledges because the agreement creates a presumption that joint custody is in the child’s best interest. As with any legal presumption, the Court allows a party to rebut the presumption if they can provide compelling evidence that the prior agreement should be changed, e.g. circumstances have changed since the agreement was created that warrants a change of custody to one parent or the other (sole custody).
If a party wishes to introduce the agreement affecting custody issues, a copy of the agreement or declaration regarding custody should be attached to the parent’s petition or motion. If possible, immediately following the filing of the court paperwork, a court must, except in exceptional circumstances create a temporary order pursuant to the terms of the written agreement or understanding of the parties.
As a general rule of thumb, the Courts will attempt to uphold an agreement that is in a child’s best interest. Thus, if an agreement reflects joint custody, then, absent extenuating circumstances, the court will uphold the agreement. And, if the agreement favors one parent over the other, then the reverse is true, absent extenuating circumstances, the court will not uphold the agreement as being against public policy and against the child’s best interests.
Let me echo the court’s position: “Love your child more than you hate the other parent.” More times than not, agreements are made for the benefit of the parents and not the child. Why parents fail to see the long-term harm and consequences to a child not having both parents is a mystery to me. Statistics prove that children raised by one parent as a consequential result of the custodial parent depriving the child of the other parent, will invariably have problems with their children when the child reaches their teenage years. For girls: low self-esteem, seeking to engage in sexual activity at an early age (as early as 11 years old in order to receive male approval and companionship), and seeking to engage in other detrimental behavior. For boys: acting out and becoming aggressive and out of control—especially if the male is being raised by his mother, sexually active at an early age, drug and alcohol abuse, seeking to hurt himself, e.g. cutting himself to ease his emotional pain.
So, if you are contemplating writing up an agreement with the other parent regarding custody, ask yourself this question: who primarily benefits from this agreement—me, the other parent or my child?
If you wish to discuss your matter with an experienced family-law attorney, please contact our office.
Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting their own research on their particular legal matter. Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.
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