Skip to main content

Did you know that 44% of marriages end up in divorce? When this happens, one thing remains common for both parties; the welfare of your children. You want to ensure your children are safe and comfortable whether they are with you or your spouse.

This is where custody agreements and orders come in. So, what is the difference between the two options and which option should you go for? Read on for these answers.

Watch Attorney Kathy Minella Explain This Article

Difference Between Order and Custody Agreement

Custody agreement and order differ in who makes the decision. In a custody agreement, the child’s parents agree on how to share their child or children after separation. On the other hand, with a court order, the judge decides based on what they feel is best for the child without the parent’s consent.

A custody agreement allows the parents to come up with a plan of how to participate in bringing up the child when they are separated. This includes legal and physical custody, as well as holidays, vacations, notifications, activites, and even telephone contact.

For example, the parents may agree Mother shall have the children during the week and take care of school where as Father will have the children over the weekend and take care of sports.

If the parents cannot agree on a cusotdy schedule, they must go to court. Here, the judge will decide the schedule the child will have with each parent. The parents will argue with the court as to what they beleive should happen, but ultimately the authority rests with the judge and they have no say. This method is used when the parents cannot communicate to come up with an agreement.  Custody orders are required to finalize a divorce so you either agree or they will be made for you.

Pros of a Custody Agreement

  • You have a say in what is best for the child(ren). Although the judge makes findings on what is the best order for the child, the parents know best. In a custody agreement, you can go with the idea you both know will favor your child and it is based on good co-parenting.
  • Avoid a battle in court. Given that most custody cases take roughly 4-6 months time to finalize, you can avoid waiting if you can your co-parent can reach an agreement.
  • Save money since going to court and relying on the judge to make decisions will cost money. You can save money by reaching an agreement, perhaps by using a mediator or an attorney to asist with negotiations.


  • You have to work together with someone you may not be communciating very well with. It forces you to do something you are uncomfortable with.
  • The agreement may fall apart and you will then have to go to court. Should one parent decide the agreement is not working and wish to change, it may require filing in court.
  • Compromise, you will be forced to make some compromise that you may not want to.

Pros of an Order

  • You are not forced to communicate and co-parent with someone you are not on speaking terms with. When you go to court to get an order, the judge will make a decision and you do not have to communicate with your co-parent. You provide your wishes to the court and the judge makes the final decision.
  • You dont have to compromise, the court will make the final decisions and you may get everything you asked for in the orders.
  • It can be less involved to go to court as you only have to tell your story and position to the judge. Trying to reach an agreement with someone who knows you and may not agree with you is challenging.

Cons of an order

  • You lose control over the decision made. The judge may make a decision you are uncomfortable with. The judge does not know you, your child, or your co-parent and they are making a decision that will impact you and your children for the rest of their lives.
  • The case can take longer than expected to complete. Court can be delayed so you can be waiting longer than 6 months.

Make The Decision That Works Best for You

Ultimately, you get the make the final say of how you obtain a custody plan. This decision will be based on your ability to communicate and compromise, only you know your situation.


The attorneys at Minella Law Group, APC, are skilled in negotiation and litigation for whatever method you choose. Call our family law office today to schedule a complimentary consult with one of our attorneys.   619.289.7948



[image courtesy of pexels] 

Leave a Reply