Custody and parenting time are generally guided by what are called the statutory "best interest factors" There are two types of custody, legal custody - ability to make decisions on behalf of the child such as religion and education, and physical custody which generally refers to with whom the child resides. Parenting time refers to the schedule of where the child will be on any given day during a week, for instance the parents may agree to a parenting time schedule where the child is with mom on Monday and Tuesday, dad Wednesday and Thursday and the parents alternate weekends with the child.
Custody and parenting time are determined by the court by examining the best interest factors and applying them to the facts of each specific case. This does not mean that the parents cannot come to an agreement regarding custody and parenting time for their children. When the parents come to an agreement regarding custody or parenting time, then, pursuant to statute, the court shall order the parenting time terms unless the court determines on the record by clear and convincing evidence that the parenting time terms are not in the best interests of the child. This means that in virtually every case where the parties come before the court with an agreement regarding custody and parenting time, the court will sign a judgment or enter an order based upon that agreement.
However, even where they have an agreement regarding these issues, it is important to remember that when the parents go before the court to seek the court's approval of their agreement, that the court will require the parties to have a written version of the agreement in a proper form for the judge to sign. Once the judge signs the judgment of divorce incorporating the terms of the agreement, this indicates that the court is satisfied that the terms satisfy the requirements of the "best interest" factors. Once the judge signs the judgment or order, it is binding and the only way to modify the parenting time or custody is by further agreement of the parties or by litigating the issue with the judge.
It cannot be stressed enough how important it is to have a well-written and thought-out judgment ready to present to the judge when the parties appear before the court because once the judge signs it, it is binding. If you have questions regarding separation, divorce, custody, or parenting time issues, please contact my office at 248-420-7419 and speak with Cathy to schedule an appointment or contact us through this website.
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