If you have a lawyer who is preparing a Separation and Property Settlement Agreement for you that includes custodial provisions, you should be aware (and if you are not, question this fact) that the Agreement is a simple contract and essentially non-enforceable as to custody.   

No sheriff will aid you in enforcing a contract.  If your spouse moves with your children, a contract is not helpful.

Even if you and your spouse work well together, put the terms of custody into a court Order by consent otherwise known as a Consent Order for Custody.

Caveat:  You may resolve custody in a contract but you should also add a provision that mandates that the parties will enter into a Consent Order for Custody in addition to the contract.

The difference between a Separation Agreement with custodial provisions and a Consent Order for Custody has to do with enforceability.   If you have a non-working relationship with your ex, you do not want to be down the road with a document that will not be enforced by an action for contempt of court.   Contempt of court is when a party does not comply with an Order and the Court will aid you in the enforcing the provisions.

Please contact our offices if you have any questions about this blog and if you are under the advice of an attorney and did not know this fact, you may not be well informed.