Co-Parenting Agreements: What You Need To Consider

Individuals who are considering raising a child or children together, but who are not in a legally recognized relationship with each other, should formalize their intentions and desires in a written document.  These documents are called co-parenting agreements.

We note that there is no guarantee that a court will enforce a co-parenting agreement, even if it is written. There are very few cases where co-parenting agreements have been actually tested.  Generally, courts in all 50 states make decisions based on what is in the “best interest of the child”, and not based on a written document created by the parents.

Despite questions regarding the enforceability of these agreements, there are many advantages to discussing issues fully and putting the understandings in writing. The process of writing a co-parenting agreement requires the parties to explore issues that they may not have considered.  It will help to avoid misunderstandings later.

Use the agreement to articulate and discuss intentions. Use an experienced third party mediator or attorney to help you develop the document.

It is not possible to create a one size fits all document for co-parenting.  There are too many variables.  As more people decide to co-parent, laws will evolve. In addition, laws vary from state to state.  There is no one document which will work in every situation. Therefore, don’t copy something verbatim that you find on the Internet. You can use it as a template, but chances are that it won’t be the 100% correct solution for your particular situation. Getting professional legal advice, while not a requirement, will facilitate the discussion and resolve problems that could arise.

The dynamics of the interaction between the co-parenting partners will undoubtedly change once your child is born.  When you child arrives your lives will change in ways you can not anticipate. Therefore, we suggest that you think in terms of your goals in the relationships you are creating.  This means do a lot of planning – and get deep into the details – but at the same time maintain significant flexibility and acknowledge the fact that some of the dynamics of your co-parenting relationship will change over time.

To start the process, here are some issues to discuss and then record in a written document:

• Who will decide on the name of the child?  Will it be mutually agreed upon or will one parent be allowed to make that decision?
• Whose name or names will appear on the birth certificate?
• If you will need to undertake some other type of legal action to protect each parent’s rights, such as an adoption or parentage lawsuit, set forth when it will happen, who will pay for it and that all parties will provide whatever consents a court requires.
• Where will the child live?  If the child will have more than one residence, how much time will he/she spend at each one?  Is this expected to change over time?
• Determine and describe the division of the child rearing activities. Are there specific activities you want each parent to assume responsibility for?
• If one parent will assume the majority of child rearing, will he or she be compensated in some way?
• How will the other parent’s right to visitation be determined?  How will planning for vacations, holidays and visits with grandparents and other relatives be determined?
• How involved will each party be in making decisions as to the child’s education, health and religion? Will one parent have the ability to make the final decision on these sensitive issues?
• What is each parent’s responsibility for the financial needs of the child? Is that expected to change over time?
• Who will claim the tax credit for the child as a dependent?
• Will one person be eligible for head of household status on tax forms?  Is so, which parent?
• Will the co-parenting partners undertake financial planning to protect the child and the other parent if one parent becomes disabled or dies?  For example, will you require the purchase of life insurance, disability insurance or establishing an irrevocable trust for benefit of child?
• Will you plan for college expenses and set up a savings account or a 529 account? How will you fund these accounts? Who will control those accounts?
• Will you agree to prepare wills and other necessary estate and life documents to protect the child and one or both parents die or are disabled? Will you agree as to the selection of a guardian if all parents are deceased and a trustee to manage the funds for the child?
• If necessary, prepare a power of attorney so that a parent can make medical decisions for child in case of emergency.
• Determine who will provide health insurance for the child, including a back-up plan if one parent loses her/his coverage.
• Consider how you will resolve issues which arise if one parent develops a romantic relationship with a third party who becomes involved in the child’s life.
• Since laws vary from state to state, if the parents or parties live in different states, review each state’s law and put in the document which state’s laws will be used to interpret agreement.
• Develop a process for conflict resolution if problems arise.  Agree to use mediation process before going to court. If possible, select and name a mediator who will be used.
• The agreement may need to be revised over time. State clearly that the agreement cannot be changed verbally and that it can only be changed in writing signed by the parties. You may wish to include language that states how often the parents will review the agreement to ensure it still reflects their wishes (e.g., once every three years).
• If a party has to go to court to enforce agreement, consider a provision that requires the losing party to pay the legal fees of the prevailing party.

In the introduction to the agreement, it is helpful to set forth the chronology or history of the parties and their mutual decision to raise a child.  That explanation gives anyone reading the document an understanding that the parties are and the reasons they agreed to jointly raise a child.

If the co-parents are negotiating this agreement before the conception of the child (which we highly recommend) or early on during the pregnancy, you should also discuss whether to include issues that will occur during the child’s gestation.  For example:

• How will the child be conceived?  Will you use some form of assisted reproductive technology?  Will you use fresh sperm and have you considered the consequences of that choice?
• Will you use a physician intermediary?  If so, there can be significant legal consequences for the sperm donor, which need to be explored.
• What medical and psychological testing will be required of the parties to determine their suitability for this undertaking?  Each party should have access to the results of these tests while setting forth each individual’s right to privacy.
• Who will pay for what, including medical fees, testing and similar costs related to the pregnancy?
• Who will be able to attend the medical appointments?
• If problems arise during the pregnancy, how will decisions be made?
• If the pregnant woman is unable to work, how will the parties deal with her needs?
• Who will be present for the delivery of the child?

You may also want to consider setting forth standards that the co- parents agree to follow if their relationship should encounter substantial difficulties.  Emphasize that your first responsibility is to the children.

For example, the parties could:

• Agree to maintain the continuity of the parental relationships that the children rely on, even if the relationship of the adults is under stress.
• Agree to honor the existing relationships regardless of how a state’s laws may characterize them. Respect the children’s relationships with their parents even in the absence of legal labels.
• Agree to maintain continuity in the lives of the children in both personal relationships and financial responsibility.
• Agree to seek a voluntary resolution rather than going to court. Litigation is expensive. It can also undermine the trust needed for co-parents to succeed in rearing the children together.

Ultimately, what the co-parenting agreement includes will depend on what you and your co-parent(s) want to achieve.  By spending the time needed up front talking through the issues with your co-parent(s) before starting your attempts to conceive, we believe that you can construct a substantive, detailed co-parenting agreement that will make all parties to the parenting partnership feel comfortable and secure.