Court’s Treatment of Custody Access Agreements

When potential clients engage my services, I generally encourage them to explore settlement resolution of their case before commencing court proceedings if parties are unable to reach an agreement. Settling custody/access by way of agreement has a lot of benefits including saving time and cost. Additionally, I find that parties feel empowered if they reach an agreement regarding their children’s lives by themselves instead of having a stranger, like a judge, who generally has limited information about the family making for them such an important decision for them.

If parties have a custody access agreement, courts will generally respect the parents’ wishes contained in the agreement provided the terms of custody and access arrangement are in the best interest of the child.

In case of problems with the agreement once it has been reached, a parent may be successful in having the agreement varied if there has been material change in circumstances since the agreement was made. For instance, if the parties had an equal time sharing parenting arrangement and one relocates to a place of considerable distance. Other examples may be as simple as clarifying or specifying the terms of the custody agreement if parties are always in conflict when interpreting the agreement. Other times it may be enforcing the terms of the agreement if the other parent is not complying with the terms of the agreement.

It is recommended that before commencement of court proceedings, parties exhaust the Dispute Resolution process contained in the agreement before commencing court proceedings as some judges will not interfere with the agreement unless there is evidence that the parties tried to resolve the issue by engaging the Dispute Resolution Clause contained in the agreement before commencing court.

I get asked a lot whether an agreement done out of court needs to be filed with the court. The answer is no unless you need to enforce the child support clause.

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