How to avoid court with an uncooperative ex
As the field of family law has evolved over the years, mediation has emerged as a quicker, less expensive, and more private alternative to the often contentious and adversarial divorce litigation process. While North Carolina recognizes the power of parties to enter into agreements about custody and forgo the turmoil that litigation can put families through, the law enforces these agreements only if and to the extent that they promote the welfare of the child. In other words, the state may invalidate or override an agreement if it is in the best interest of the child to do so.
While a court may follow a custody agreement as much as possible, they are required only to do what is deemed in the best interest of the child. If this seems concerning, luckily there is an option for resolving custody disputes that holds the weight of a court order, while providing parents a way of avoiding the heat of litigation: a consent order.
What is a consent order?
A consent order is an agreement negotiated out of court, regarding the terms of a custody arrangement that is submitted to the court for the judge’s signature. The consent order has all the same effects as a court order entered after trial, without ever having a trial. A consent order is valid and enforceable because it evidences the signed consent of the parties and approval of the judge.
When should I seek a consent order?
There are several options for settling a custody dispute, and each has its advantages. While consent orders are not right for all families, it may be advisable to seek one when a spouse anticipates problems with the other spouse, circumstances between spouses are prone to change, or when one spouse feels the other is, or may become, unreliable. Even if you feel confident in the out-of-court arrangement now, you may want a consent order simply for the added legitimacy and enforceability it provides as a court order. For instance, if you and your spouse have both agreed to a schedule for which days you leave early from work to pick up your child from softball practice, but you know the other parent has a tendency to ignore the clock while working and has a track record for being late for pick up times, a consent order will ensure that swifter penalties are enacted if a violation occurs.
What are the differences between a consent order, court order, and separation agreement?
A consent order is a hybrid between a separation agreement and a traditional court order. A separation agreement exists completely out of court while court orders are the result of a trial and a ruling by the judge. Consent orders, meanwhile, are initially arranged out of court and then submitted to the judge for approval. The major differences between these custody agreements is the way they are enforced and modified. For court orders, a motion for contempt can be filed if the other party is violating the order. On the other hand, a separation agreement is enforced by suing for breach of contract, which can be a lengthy process. While separation agreements can be modified through amendment, court orders require that a motion to modify be filed with the court and modifications must have judge approval. In the event the parties to a separation agreement are unable to agree, or don’t want to sue for breach of contract, either person may begin an action before the court.
The advantage of a consent order when compared with separation agreements and court orders is that the parties are able to combine the benefits of a court order, such as filing for contempt or modification, with the efficiency and flexibility of choice granted by out-of-court agreements.
How to Obtain a Consent Order?
The easiest way to obtain a consent order is to first file a “friendly” lawsuit for child custody. It is called such because both parties agree to bring the case forward and there are often no accusations or negative statements involved. The action is filed for the sole purpose of submitting the agreement for the court’s review. Next, the parties will outline the terms of the custody arrangement in a document that must be signed by both parties. The document is then submitted to the court for review. Finally, after ensuring the proposed arrangement does not contradict the law or public policy, the Judge will sign the document thus creating a valid, enforceable consent order.
