Understanding a Child Custody Consent Order
A consent order is an agreement between two parents that is negotiated outside of court between the two parties and their attorneys. They create the terms of custody, and their attorneys submit it to the court for the judge to approve and sign. A consent order carries the same legal effects as a court order that is entered after a trial only there’s no trial preceding it.
It’s important to note that a child custody lawsuit must be filed in order to move forward with a consent order. However, as long as both parties are aware in advance that a lawsuit must be filed as a part of the process, there is no need for alarm or outrage. Typically, our attorneys will file a “friendly” lawsuit on behalf of our client in order to make entry of the party’s agreement by consent order possible. Both parties will be aware of the lawsuit in advance of filing so no one is surprised or upset which may jeopardize negotiations.
A child custody consent order itself will have the custody agreement terms laid out in detail with no negative statements, findings or accusations about the parties unless both parties agree. Your family law attorney will then submit it to the assigned family court judge for signature and filing. Moving forward, both parties will be held accountable for following what is outlined in the consent order.
Repercussions for Violation of a Child Consent Order
Once entered and filed, the order is enforceable and any violations could conceivably result in jail time through a motion and order to show cause process, however jail is often a last resort. Violators of custody orders often have to reimburse the other party for their attorney fees and take corrective action or they will be sent to jail for up to 60 days.
What Should I Choose...
A Consent Order or Child Custody Agreement?
A child custody agreement is a contract containing terms of custody as agreed to by the parents of minor children. As long as both parents hold up their side of the agreement, these contracts are fine. The problem is that when one parent stops abiding by the agreement, the courts can’t enforce it.
If one party violates the custody agreement, the other party will have to file lawsuit for breach. This may allow the court to re-determine custody all over again because courts are not bound by your agreement. Most courts will respect that agreement as much as possible, however they are required only to do what is deemed in the best interest of the children.
Changing a Consent Order
Consent orders aren’t written in stone, but they can be difficult to change or update. One party must file a Motion to Modify Custody and must allege and prove a “substantial change in circumstances since the entry of the prior order affecting the welfare of the minor children.” Without a substantial change in circumstances, such as moving, change in finances, or your job schedule changes, the consent order can’t be updated.
Is a Consent Order Right for Your Family?
We advise clients that are dealing with an unreliable spouse or who has concerns that their spouse will not abide by an agreement for any reason to seek a consent order. These factors can help you decide whether or not a consent order is right for you:
- Does your spouse engage in or have a history of substance abuse (alcohol or drugs)?
- Has your spouse engaged in acts of domestic abuse of violence?
- Does your spouse have any issues with their mental health?
- Does your spouse have immediate family in another state or country (or are they likely to move)?
- Does your spouse lie regularly or change their minds often?
- Is your spouse unpredictable or inconsiderate with the kids or your schedule?
- Does your spouse try to dictate to you or dominate you in any way?
- Do you and your spouse have any major differences with regard to raising the kids, ie religion, school preferences, etc?
- Are you willing to trust your spouse to keep the terms of the agreement?
- Does your spouse engage in alienating behavior with the kids?
- Is your spouse a good parent with good parenting skills?
- Do you want the authority of the law via a Court Order backing up the terms of the agreement?
- Do you fall into any of the above categories?
As you can see, the issue boils down to whether or not you anticipate problems with your spouse. Even if you do not currently have issues with the other party, things may change, especially when other romantic interests enter the situation. Permanent custody orders are also difficult to change. This may or may not be a good thing for you depending on your circumstances. If you anticipate wanting to move or marry soon, your attorney needs to know that so that the order is drafted properly.
Consent Orders also serve to keep jurisdiction in the issuing state (North Carolina) pursuant to the Uniform Child Custody Jurisdiction Enforcement Act, at least long enough to prosecute a custody claim. This can help avoid the problem of the other parent filing a case in another county or state later to determine or change custody.