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| | Modifying Conservatorship by Agreement |
Child's Best Interests Requirement
To promote the amicable settlement of disputes, the Family Code permits the parties to enter into a written agreement modifying prior agreements or orders regarding conservatorship and possession of the child. Although the agreement does not need to meet the Family Code's modification tests; it must be in the child's best interest. If the agreement is found to be in the child's best interest, the court must render an order in accordance with the agreement. If the court finds that the agreement is not in the child's best interest, the court may request the parties to submit a revised agreement or the court may render an order for the conservatorship and possession of the child.
NOTE: Although the court may not be bound by the parties' agreement, it should at least consider the agreement in order to encourage amicable resolution of disputes. Encouraging settlement of conservatorship disputes has the additional positive effect of enhancing the continuing relationship of the parents, which in turn benefits the child
Formal Requirements
Agreement must be in writing. In order to be enforceable, the agreement must be in writing. Oral agreements are not enforceable, nor are informal child custody arrangements between the parties. Moreover, written documents do not suffice as formal agreements if they do not evidence the parties' intention to be bound.
Subsequent Treatment of Order
No appeal from agreed order.
A party who has agreed to a modification may not then complain of the modification on appeal.
Subsequent modification allowed.
A party to an agreement that was incorporated into an order may seek a modification of the order, based, however, on the usual tests for modification of a prior order.
Enforcement.
Terms of an agreement contained or incorporated by reference in the order regarding conservatorship or access to a child may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract.
Informal arrangements not enforceable.
The Family Code does not give parties the right to make private agreements regarding conservatorship without court approval. Informal contracts regarding these matters are considered against public policy and thus unenforceable.
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