What is a Notarized Custody Agreement?
Signing and notarizing a custody agreement is an alternative to going to Court to obtain a formal order of custody between two parents. Such an agreement can be a useful tool to expedite the process, and given the same legal effect as a court order and can be enforced by filing it with the Family Division of the Court. This type of agreement is not authorized by statute § 767.10(1) or rules of civil procedure, but was held valid and enforceable in the case of In Re Marriage of Peters et al, 167 Wis.2d 890, 482 N.W.2d 864, 1992 WI App 148 (1992) "Where parenting time is agreed to by the parties and they have acknowledged it before a notary, it is binding . " Peters et al (citing State v. Davis, 65 Wis.2d 74, 221 N.W.2d 843 (Wis. 1974)). "An order so entered is all that is required to invoke the full power of the court to enforce its provisions by contempt procedures, fees, and costs….
Where an agreement is signed, sworn to and notarized by both parties in the manner described in Peters, the Court "will not disturb its terms." Peters at fn2. If one party fails to fulfill their responsibilities, the agreement can be enforced by filing this document with the Court.
Advantages to a Notarized Custody Agreement
Arguably the most important benefit of having a notarized custody agreement is that it is more likely to be recognized as valid and enforceable by the California court system. A custody order that is signed by both you and the other parent of your child may not necessarily be recognized by the court because not all judges will be willing to sign an order that a child may be moved out of California without holding a hearing about that specific relocation. However, if you secure a custody agreement that has been notarized and submitted to the court system, it is more likely that the judge handling a future dispute about your custody agreement will recognize the terms of that agreement as legitimate and enforceable.
Another benefit of having a notarized custody agreement is that it may make it easier to enforce custody terms now and in the future. Even when you believe the other parent will do everything he or she is supposed to with regard to having your child for his or her scheduled visitation time, you may find that he or she does not, nevertheless. Having a notarized custody agreement strengthens your ability to ask the court for assistance with enforcement of the agreement.
Drafting a Notarized Custody Agreement
Prior to the conference of the Court, each party shall prepare a Written Parenting Plan Agreement (the "Agreement"), as set forth below, and submit same to the Court at least ten (10) days before the scheduled conference.
A draft of the Written Parenting Plan Agreement (the "Agreement") shall be prepared by the plaintiff, with input from both parties, in good faith and with as much detail as is appropriate, and shall be submitted to the Court at least ten (10) days prior to the scheduled [pre-trial] conference or preliminary conference. An Agreement shall set forth all provisions that are required to be included, pursuant to the applicable Rules. If an Agreement shall include any provision not permitted under the applicable Rules, the parent or parents shall make the necessary changes so as to create a proper Agreement [.] Each party shall have the right to require that the plaintiff revise the Agreement if it is deemed necessary and/or essential for the best interest of the child or children. . . (emphasis added). No matter what actions are taken by the plaintiff relative to preparation of the Agreement, it is within the discretion of the Court as to whether the Agreement shall be approved or not. . . (emphasis added). By way of example, as part of the Written Parent Plan Agreement that is presumably provided to a Judge at the "Pre-Trial Conference" where each attorney and the client are present, it may be necessary for the parties to discuss and agree to what enumerations to agree to in the Parenting Plan Agreement, e.g. Parenting Time, Schooling, Child Care, Religious Upbringing, Consent for Medical Treatment and Health Care Insurance. Once the parties have agreed to the content and details of the Written Parenting Plan Agreement, it may be necessary to have the agreement notarized (sworn to by the parties) so it can become an enforceable court order, like that of a Divorce Settlement Agreement. A Notary Public is an individual appointed by an official (usually the Secretary of State) to administer oaths and perform certain non-contentious acts such as witnessing a signature on a document to be later used in court. Essentially, a Custody Agreement is a form of contract between the parents to a child—even if it is only temporary or a suggestion for how they will proceed in their parenting endeavors. Notaries are used to ensure that the signatures on such an Agreement are authentic. There are different types of notaries. It may be necessary to have a mobile or "traveling" notary, who will come to your residence to obtain the necessary signature.
Notary Requirements
Obtaining a notarized signature on a custody agreement is the generally accepted best practice, but such notarization must be pursuant to Pennsylvania law. The laws governing notary publics in Pennsylvania, 57 P.S. § 162, et. seq., specifically requires that:
1. the signature is made in the presence of the notary, except in two situations: (1) if the individual is not present because of physical incapacity (mental incapacity is not a reason for which a signature may be notarized), and (2) if all parties to the document are already personally known to the notary; and
2. the notary has no financial or beneficial interest in the transaction involved in the document.
In addition, it is important to make sure that the notarization is performed by a notary public who is qualified to notarize a custody agreement, meaning that the person is either a resident of the Commonwealth or of a willing neighboring state (i.e. New Jersey or Ohio), or has an office within the Commonwealth. 57 P.S. § 166.
Commonly Held Myths
A common misconception we hear is that the parties are "done" with their case because they have signed and notarized a custody agreement, which is enforceable as a contract in Florida. The misconception is that a person cannot later move or seek a modification of the legal agreement. While it is true that a notarized custody agreement will be enforced under Florida law, there are significant limitations on such an agreement. For these reasons, that type of agreement is often referred to as a "shall cause" agreement.
One of the key limitations of these types of agreements is that they can be modified under the same standard as a parenting plan. For example, one party can start a modification of parenting plan action (previously called a supplemental petition for modification of timesharing) and cause to have qualified inputs by the Court including a parenting coordinator, social investigator, and/or psychologist for the children at issue. This type of involuntary (i.e., the parties don’t get to choose the provider) analysis is one of the factors often leading to a modification of an existing parenting plan. A Court does not have to find a substantial change in circumstances, but must find that the recommended timesharing plans found in the recommendations of the provider would be in the children’s best interests. If no substantial change in circumstances is found, the Court does not have to grant the modification even though the provider may recommend a change.
Another limitation often overlooked is that these "shall cause" agreements or other constraints on a person’s ability to move away from the agreed residence are not binding on third parties if established. For example, if one parent was awarded primary residential custody and located in Miami, that parent could not then move away from Miami without having the right to relocate litigated in Court each time. Alternatively, if the child was given primary residency with someone in Miami , the other Florida parent may later be able to move away so long as the removal statute found in Florida Statute § 61.13001 could be satisfied.
People also sometimes believe that after a child turns 18 years old, they can no longer litigate or enforce that agreement. This is technically correct. However, there are durable provisions such as school provisions or child removal provisions which may last through a child becoming an adult. When that occurs, the child cannot yet decide what school they will attend or whether to move away, but their parents would likely still share in decision making even an adult child.
Another misconception with a "shall cause" or notarized custody agreement is that the agreement is based on the current situation with the children. This is not true because a substantial change in circumstances is occurring all the time. A child who was 6 months old when the agreement was written might be 18 years old and about to graduate high school when the drafting party wants to enforce his "shall cause" agreement. Likewise, people change jobs all the time moving away from the location of their choice to one which is better for them or than the one divoced to. This can lead to a party having moved out of state for years, thinking the agreement is still in place because they signed and notarized — and wanting to enforce that agreement in another state or even country where they reside.
It is also true that sometimes these contracts are "lifetime" in nature and provide specific instructions on how a person will parent long into the future. The question becomes "whether the Court still wants to enforce such an agreement." Typically, a Court does not view such an agreement as being permanent in age so once the amendment to the statute occurred, the Court could have determined that the agreement was invalid. Check with an experienced family lawyer any time an acquiesced notarized agreement is drafted or is being enforced to make sure the proper procedures are being followed.
Enforcement of a Notarized Custody Agreement
Courts do not just refer to the terms of a court order. Assuming there has not been a material change in circumstances, courts will enforce an agreement of the parties if the agreement is contained in a court authorized and filed Consent Order or a notarized agreement signed before the Court of Common Pleas. A custody agreement is NOT enforceable unless it is approved by an Order of the Court. A notarized custody agreement, therefore, is enforceable just like any other Order of Court provided that it was executed and notarized prior to being presented to a Judge and was court authorized. That means that the person who has violated the agreement is breaking a Court Order – so, you take that person to Court for contempt. If you have a disagreement over a notarized agreement that was executed, presented and court authorized at the same time as a Divorce Decree, that document should be treated like any other court custody order and should not be considered merely an agreement of the parties. This is not to say that all notarized agreements of the parties will be treated like Orders of Court. Again, the important factor is whether the agreement was court authorized when it was notarized. That means you had the agreement typed and presented to the Court for authorization (and approval), it was signed by a Judge, and then subsequently notarized and recorded with the Chester County Court of Common Pleas for an individual case.
Notarized Custody Agreement Alternatives
There are a couple of different alternatives, outside of notarized custody agreements, that exist when it comes to posting your child’s current surveillance order. One such alternative is for parents to simply draft a written custody agreement that is signed by both parents. In these cases, parents usually sign the agreement and have it notarized. These documents are not made "orders of the court" until a judge signs them. These types of signed, notarized agreements are considered "out-of-court" agreements. In a sense, they are similar in nature to a notarized custody agreement that is entered into by the parents without any formal approval from the court. What will make or break you in terms of these agreements is if either parent obtains a court order that incorporates, accepts, adopts, and ratifies the terms of the written agreement.
If no petition or application to incorporate the agreement has been made to the court, the document that both parents signed continues to be just one of the terms that parents have agreed to, at least at face value, and that is all you can do with it.
In other words, you would be unable to utilize a prior agreement that took the form of a simple, but notarized agreement in a court setting. You cannot present that type of document to a judge and ask them to endorse it unless and until it has been ratified by the court.
Another alternative to the notarized custody agreement is a court-ordered agreement. This type of agreement is what happens once the parties in a divorce involve the court in their family law matter. Usually, at that stage, parties will submit their divorce decree terms to the court which are then incorporated into a court order that is signed by the judge. Once the judge endorses the agreement, the judge’s signature makes it an enforceable order that will be upheld by the courts in the event that one party seeks to challenge it .
From an enforcement standpoint, a court-ordered agreement is the safest bet for you. If one parent were to violate the custody terms set forth by the court in your divorce decree, the other parent can petition the court to enforce the order. Without the district courts approval to enforce the terms of the agreement, however, you are locked into the terms of the agreement.
Other forms of alternatives to notarized custody agreements that are considered are mediated agreements. Similar to the types discussed above, mediated agreements require a court order to be enforceable. The difference is that in this case, parties would enter into a mediation with a third-party neutral mediator. In some districts, this mediator may be a judge and in others, the mediator will be an outside mediator assigned to help you and the other party reach an agreement.
At the end of the mediation process, the mediator will draft up an agreement that both parents have to sign. The parents’ signatures, however, mean little without the district’s approval. The document that is produced after mediation then has to be placed before the courts by either the parents or the mediator. Once in front of the court, a judge will look at the cooperative effort by both parents to reach a resolution and make that agreement a court order.
If an agreement proposed by the mediator is not in the best interests of the children, the courts in some instances will not ratify it. The agreement can sometimes even be rejected in its entirety if it does not serve the best interests of the children.
Additionally, the court will sometimes impose strict procedures for the parties to follow in the event that it becomes apparent that the agreement was never followed post-order. In such cases, the court sometimes will require that a guardian ad litem be appointed to the children’s case in order to ensure that the agreement is followed.