We have been going through a similar issue and have been advised both here and by our own attorney…if both parties can agree and have it notarized then it is great but it is not as binding as a court order and cannot be enforced the same way.
[i]Originally posted by mal[/i] [br]We have been going through a similar issue and have been advised both here and by our own attorney....if both parties can agree and have it notarized then it is great but it is not as binding as a court order and cannot be enforced the same way.
If both parties agree, get their signatures notarized and then file it with the Court wouldn’t it be just an enforceable as if a Judge ordered it? Or is the way it is enforced just different?
An agreement cannot be enforced as easily as a court order. A court order can be enforced by local law enforcement. An agreement can hold up in court but that would mean court cost and filing suit against the party not upholding the agreement.
If they do not have a previous agreement or court order then the attorney is right, they can do either. My suggestion is to have an attorney look over any agreement and possibly set up mediation if they are unable to resolve their disagreements. Take as many steps as you can to keep from going to court. It’s time consuming and costly regardless of the outcome…
In our situation, we had a preliminary hearing on custody so even though my husband and his ex settled the judge still had to sign the final agreement making it a court order.
If they agree to the changes they can do a consent order and have it signed by a Judge. This can be done even if there is no motion to modify custody filed. They can resolve custody in a consent order or in an Agreement, both are valid and binding, however enforcement is different. With a contract you are less likely to receive the assistance of law enforcement (not an issue in most cases) and if you go back to court to make a change to the contract, the court will decide based on the best interests of the child, and not based solely on the contract.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
301 McCullough Drive
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044
Durham & Chapel Hill Office
1829 East Franklin Street
Chapel Hill, NC 27514
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My friend (stepmom) and her husband are having issues with the bio-mom of his daughter. They have joint legal custody but daughter resides mainly with father. They were advised by an attorney they could either go to court to change custody and address issues at hand, OR if they could sit down and agree on changes they could write them up and have the document notorized.
From my long experience I thought you must have custody order blessed by a judge or it’s not valid (even if notorized). I told them they should really file a change order and then go through mediation (court required in Guilford County) in order to have a fully revised valid agreement.