Who Needs A Notary Custody Agreement?
A notary custody agreement is an agreement in which two parents submit agreed upon terms for minor children on a piece of paper and a notary public can notarize it. By having them notarized it gives them more legitimacy than if just signed. It is not a court order so the parents can do what they want with it as far as following the agreement. A standard form for a notary custody agreement is shown below. It is not enforceable by the court in a litigation matter so even though the parties have agreed to terms, the other party can simply disregard it without any consequences . However, these agreements are often signed when they separate by the parents to spend time with the children and can be notated in a court case in the sworn testimony of the parties as an agreement that both were following independent of the other parent following them at the same time. The agreement can be used by interpretation and for guidance in a contested court case when analyzing the actions by the parents as the case proceeds.
The Legal Significance of Notarized Custody Agreements
Notarizing a custody agreement provides a layer of legal protection not inherent in an unsigned instrument. In the context of a custody dispute, immunity from challenge or abuse of the existing custodian’s authority often forms the crux of the matter.
Consider, for example, a scenario in which parents share joint custody and agree that A shall have custody while B has scheduled parenting time. The parties are in accord for the time being but, for reasons unknown to us, the agreement remains unrecorded with the Court. Mom takes Junior to the family doctor for a check-up. Dad finds out Mom took Junior to the doctor and indignantly argues Mom violated Section 71-630(b).2.10 of the Kansas Statutes that requires both parents consent or the Court order to be followed for non-emergency healthcare issues.
Had the agreement been recorded with the Court, Mom and Dad would have had to go back to Court to address the issue. Even then Dad would only be able to argue Mom should be required to pay half of health care costs if the Court agreed that a violation took place. Since an agreement is devoid of authority when it has not been submitted to and filed with the Court, it cannot shape the parties’ rights in any meaningful way. Therefore, Dad would have no remedy in the absence of a stipulated agreement to follow. (We’ll leave aside the issue of whether doctors have the right to turn away patients who are not accompanied by both parents.)
When an agreement is notarized and recorded with the Court, it transforms from a pen and paper exercise into a fully enforceable and binding document subject to compliance and enforcement through court orders and contempt. Questions about whether signing was voluntary, consent was given freely, or reference to the agreement is sufficient only become relevant in contexts where notarization is absent or has not been respected by the parties and/or Court. Absent any evidence a signature or entry into the agreement was obtained through fraud, coercion, duress or undue influence, the Court will enforce the agreement as a binding contract.
In sum, notarization of a custody agreement ensures that the Court has complete knowledge of the parties’ intent and ability to be bound by terms of the agreement as reflected in the document. The failure to record an agreement with the Court undermines the legal basis on which the agreement rests and provides no protection from the other parent who may choose to exercise his/her authority in a manner inconsistent with the explicit terms of the agreement.
How To Notarize A Custody Agreement
As a vendor partner of 1-800Notary.com, I regularly meet with customers who are interested in having notary services performed as it relates to their custody agreement. Every so often people will ask – how do you have a custody agreement notarized? There is a specific process for having a custody agreement notarized and part of that process involves a notary public commission. Let’s break down how to have a custody agreement notarized by a notary public.
One of the major steps in the process is determining whether the custody agreement is full or legal custody. For your custody agreement to be legally binding, it must be signed and notarized by a licensed notary public.
One of the first steps in the process is to determine whether either party can be considered a minor or an adult. If either party is under the age of majority, his or her signature must be affixed on the same line and notarized by a licensed notary. For the purposes of the custody document, there will need to be a second notary next to the original signature.
The second step is to have the written custody agreement prepared. It is important for both parties to sign the document before a notary public. It is particularly relevant to speak with a lawyer before you decide to sign the oral agreement.
The third step is to have the written custody agreement prepared and read by both parties. Speaking with a lawyer is a strong recommendation prior to signing the written agreement. In a general sense the last step is to ensure that the written custody agreement has been notarized by a notary public.
Challenges with Notary Custody Agreements
Creating a notarized custody agreement can sometimes create issues for parents. These can include:
• Language barriers for non-English speakers. With globalization, more and more couples are composed of different nationalities and languages. It is not uncommon for parties to require interpreters to aid in understanding the complex terms of a notarized custody agreement.
• Not having a picture ID handy. One little detail that can delay the notarization process is for one of the parents realizing they do not have a picture ID or their ID has expired. While there are many options for getting around this issue, including filing for a notary public by mail or showing up at the courthouse without one, it is a good idea to have a picture ID ready ahead of time.
• Different state or local laws. Because custody can be determined by both state and local jurisdictions, there can be a lot of confusion when parents move to another area. This means a separate adjudication may be taking place in the new state. It is a good idea to investigate the local or state laws to see whether any changes to custody agreements are necessary.
• Changes in circumstances. Circumstances can change over time for many reasons, and this change may require revisions to custody plans. For example, a judge may alter visitation plans after the custodial parent relocates to another state. Similarly, if there are major changes to child care, work schedules or other responsibilities, the parent may need to create a new notary custody agreement.
• Important information is missing. Some parents find they forget to include important details in their notarized custody agreements. Many times the minimum required information may not fully explain the complete situation, or information may change over time. For example, parents may list child care costs, how they will share the costs and visitation plans. They may forget to include insurance premiums, college fees or important information about the children’s schedule. These details may not be necessary to satisfy the requirements of a notarized custody agreement, but it is a good idea to include all relevant information.
• Not having the agreement signed by both parents. A notarized custody must be signed by both parties. Sometimes parents may rush through the notarization process or forget to ask the other parent to sign the document. It is very important that both parents sign the document, which may require a second trip to the local notary public’s office.
Advantages Of Notary Custody Agreements
Notarizing a custody agreement is a valuable step in the process of ensuring that a minor child is well cared for in the event that both parents are, for whatever reason, unable to continue to do so. Just like getting a prenuptial agreement notarized or having a divorce settlement agreement formalized, having a notarized custody agreement adds an extra layer of protection in the process of determining child custody, and can help to ensure that a child is cared for in accordance with the law.
When the decision is made to have an agreement notarized, the process is pretty simple. Both parents will need to be present in front of the notary public with proper identification, such as a driver’s license or passport, and sign the custody agreement. The notary will then verify the identities of each parent by checking each of their forms of identification, and once that is complete, they will sign and stamp the agreement. That’s it! Although the process of notarizing a custody agreement can be simple, it is also quite useful.
The first primary advantage of making a custody agreement legal is that, once notarized, it becomes a legal document that both parents must abide by. If any disputes arise in the future, it is possible to take steps to enforce the agreement legally, and to determine exactly what each parent is responsible for , and who gets custody of the child in varying situations. It is like a contract between the two parents, which requires both to carry out certain responsibilities. The second unique advantage is that, by getting a custody agreement notarized, you can avoid the dangers that could come about from failing to sign one. All parents have certain rights regarding their children, including making certain decisions. These rights are inherent, and exist as long as one or both parents are alive and active in their child’s life. However, if an agreement is not specifically notarized, those rights could potentially be challenged by outside parties. For example, if grandparents, teachers, or others even question the ability of one or more parents to care for a child, signing a custody agreement can prevent such questions from being asked anytime soon.
Most importantly, parents can find peace of mind in knowing that a custody agreement is inked and notarized. It provides reassurance that the child’s interests are being looked after in the event of their death, of a breakup, or if they are otherwise unable to care for their child. That is the main purpose behind a custody agreement, and signing one in a legal way can provide increased security and peace of mind for all involved.
Ways A Notary Can Help With Custody Issues
Beyond the creation of agreements, a notary may also serve a broader role in proceedings affecting children. For example, a notary can assist with mediation and the drafting of an amicable parenting agreement that can later be formalized in an order of the court. Mediation may be useful because sometimes people cannot agree on how to craft parenting agreements but with the assistance of a notary as a neutral mediator (remember that the notary must be impartial), it may be possible to find common ground where none was found before.
Furthermore, a notary can confirm that the contents of an agreement or order are not only logically sound but also legally acceptable under the circumstances. It would be helpful if a notary could ensure that the language of any parenting agreement is clear and not open to misinterpretation, since one of the main reasons parenting agreements are violated is because of ambiguous wording.
When It’s Essential To Get Legal Counsel For Custody Agreements
As with any legal document, there are times when seeking professional legal counsel is advantageous or necessary. The cost of hiring an attorney or law firm is much less than the cost of making a mistake and having to address problems that arise later on.
It’s advisable to hire a lawyer to review your agreement if:
• You have a complicated or high-income estate.
• You have a business or share ownership in any type of business.
• The parties cannot agree on some or even one item in the agreement.
• The parties do not have the same cultural, socio-economic, educational, or religious backgrounds.
• Child-centered issues, i.e., custody or parenting plans, health care, education, and expenses, are involved.
• You or the other party are part of the military. If one or both of the parents serve in the armed forces, an experienced attorney can help create an agreement that considers service-related parental changes .
• You and the other party have never shared or agreed on financial responsibilities.
• Significant assets will be allocated to either party prior to or after the marriage.
• One or both of the parties want something drafted or is concerned about the other party getting more than he or she should.
• There are assets, debt, or property involved outside the jurisdiction.
• One or both parties have been married before and the previous agreements have not been concluded as required by law.
• Someone involved in the agreement is substantially older than the other.
Even if these aren’t present, a couple may decide to engage an attorney to draft or notarize the agreement. An agreement’s complexity and/or how well the parties communicate often dictate whether or not an attorney or law firm is needed at some point during the drafting and notarization process.