Don’t make private deals that alter the custody order, without obtaining a new court order.

Here’s a real case that’s happening in my office right now: A father and a mother went to court fighting over custody of their son. They were never married, and had not lived together for an extensive period of time. They were quite young. By all appearances, their anger and uncertainty over the breakup of their relationship fueled their child custody fight.

Torn between two different petitions, the Family Court judge ordered that the child could live with his mother in Pennsylvania for one week, and then with his father in New Jersey for the following week, and then back with his mother for a week, and so forth. The week-on/week-off plan must have seemed like a compromise position for the judge to take, especially since the child was not yet in school. But the travel between the parents became excessive and expensive, and the arrangement broke down within a few months.

In fact, two months after the judge signed the order, the parties carved out a new time-sharing arrangement, which involved visits with the father only on weekends. The new custody and visitation plan seemed to be working as the couple slowly tried to mend their broken relationship.

Half a year later the relationship is on the rocks. Nobody followed the week-on/week-off court order. The mother has since relocated to New Jersey, but she is not living with the father. And even though the parties made their own voluntary revision of the original order, they never bothered to secure a new court order setting forth their revised terms. Now that the parties are bickering again, there’s no relevant order that the judge or local police can enforce.

What the couple should have done was to signed a “Consent Order” setting forth their new terms when things were going well. A consent order, sometimes referred to as an “Agreed Order” or a Stipulation, should have been submitted to the court, signed by the judge, and filed of record. The failure of this couple to act sooner puts them both in breach of the original order and further impairs their ability to obtain an enforcement order. They have no choice but to return to court and to start over, presumably with a Petition for Modification.

The moral of the story is that you shouldn’t make private deals or informal variations of the child custody and parenting time order on a permanent basis — unless you’re prepared to sign a Consent Order memorializing the new deal and file it with the Court. There should always be an updated order on record that reflects the custody and time-sharing arrangement that you’re actually following.

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