What Are Custody Agreements?
Custody agreements are arrangements that determine how and when children are taken care of by both parents after a separation or divorce. These agreements are used by mothers and fathers in deciding on co-parenting arrangements.
In Virginia, there are two basic types of custody agreements: joint custody and sole custody. Joint custody means that the children will share time with both of their parents at their homes and divide vacations, weekends and holidays. Sole custody means that only one parent has the right to live with and raise children – although visitation may be ordered by the court.
Custody agreements can include details concerning where one parent will live, what the parenting schedule will be, and visitation by the other parent . Issues such as child support can also be determined in the agreement, although child support is typically established as a guideline amount under statutory provisions. Parents can also agree on healthcare needs for children, how education is provided (public, private and higher education), religious upbringing, such as church appearance with the children, and other items that parents feel are important to the raising of their children.
Custody agreements are made by parents involved in the case. The parents agree on how the custody of their children will be handled. When parents cannot agree on an appropriate custody arrangement, the court decides on custody for them under the general welfare of the child standard.
The Public Nature of Court Documents
The default position with court records in Illinois, as in most jurisdictions, is that court records are public documents. As discussed in the introduction, there is a presumption in favor of production and disclosure of court records to ensure fairness and integrity in the judicial process. By making records available to the public and press, the courts prevent secret proceedings and thereby enhance truthfulness and the quality of testimony, reduce the potential for abuse of judicial power and corruption and make judges accountable for their actions.
However, not all court documents should be open to the public. The most common reasons you will hear or read about for the sealing of court documents are: allegations or findings of abuse and neglect; protection of witnesses; trade secrets and confidential commercial information; sensitive personal information; and national security. In family law cases, the concern is primarily with the protection of sensitive personal information, including the identities of minors and information about finances and other matters that would seem not relevant upon an initial review.
As a general rule for courts, the fact the requestor named a party as the Illinois Supreme Court’s Rules of Court explain, ‘is generally not sufficient as a showing of an overriding interest that overcomes the interest in access. All parties to the case have an interest in confidentiality’.
A party’s attempt to keep a record or document confidential requires a balancing of such party’s privacy interest(s) against the public policy interests in access to and disclosure of court records. Illinois Supreme Court Rule 138 requires that the court conduct such balancing as a broad ranging assessment. The court may consider whether there is an overriding interest that outweighs the public policy and private interest in confidentiality of the records sought to be sealed and/or whether there is an overriding interest that overcomes the right of public access to and disclosure of the records and/or a compelling interest in protecting the health, safety, and security of the public at large. Once a court makes such a determination, the court must then balance such overriding interest against the public policy interests in access to court records and documents to determine if the interests in access and disclosure outweigh such privacy interests.
The family law ruling issued in Cook County’s juvenile court excluding documentation of abuse and neglect reports and investigations from public file is not as straight forward as it appears at first blush. The Cook County Order is clear in its directive that such reports and investigation documents are excluded from any publicly available file, but the Order does not state what remains in the file or what remains available to the public. Presumably, as earlier discussed, all other details of the parties are available to the public.
Are Custody Agreements Public Information?
Yes, custody agreements are generally public records. This means that the general public, including the employer of either parent, will have unrestricted access to these documents. While there are no restrictions on public access, however, there are conditions you should consider. These conditions include:
Anyone can make a public records request for an existing agreement. From there, it is up to the courts to determine if the document can be sealed or redacted. As the requesting party, certain conditions need to be met in order for your petition to proceed. The court may entertain requests for an order or writ that limits or denies public access. Unfortunately, the simplest way to see that an agreement is sealed from public record is to seal it prior to being signed and agreed to by the parties.
The information contained in a signed final decree in a divorce case, as well as parenting plans, is generally considered a matter of public record in Virginia. Any confidentiality attached to such documents is generally lost once the document is filed with the court following review by a judge. Depending on the county, a judge may review any document as part of the finalization of an agreement. Other times, a judge may just sign off on the entire paperwork package without review, meaning that the document is more likely to be classified as a matter of public record.
The complication arises when determining who "the public" is. In many cases of streamed proceedings, the court may choose to limit access to the court transcript. In addition, hearings are usually open to the general public. Although this is the general rule, the Family Court can change the rule at any time, possibly closing the courtroom to the public. In such cases, hearing officers can change the rule at any time, meaning that the public can be excluded.
Public Records Exceptions
Despite the presumption that such documents are public record, exceptions exist to this rule. For Scott and Candiss, their version of the custody agreement is a public record despite what the future outcome may be. However, presuming that the custody agreement must be kept secret in the public record for whatever reason under the sun is not the case. Certain instances such as no contested matter may require a family law attorney to file a ‘generic’ version of the public record in lieu of the specific document for the county’s public file. Since all family law matters must be public record despite being confidential, there is an exception to the rule. The code allows instances of protective orders in situations considered abusive in nature. In the case of an abusive spouse or parent, discretion is used for the custody agreement. A protective order can entail provisions to prevent, nullify, or specifically limit public access to sensitive information. Situations may also involve concerns, whether statute existing or not, that may prohibit public access in whole or in part of the document for safety reasons; i.e., a parent who stands to a high risk of abduction upon relinquishing custody of said child. In addition, there are other instances where consideration is given in protecting the public from unnecessary exposure to information over the scope that the law deems appropriate. As an example, whereas domestic violence is serious enough to warrant appropriate action, the sensitive aspects of such matters are limited to only the relevant parties in the case for the sake of not tarnishing the personal reputation of a good and innocent person (i.e., condemning an abusive parent). But generally, all family law matters that are pertinent to child custody agreements in Wake County, North Carolina are public record upon filing the document with the Wake County Clerk of Courts. With a few exceptions, all family law public records and documentation in Wake County have their limitations of protection from public exposure.
Obtaining Custody Agreements
If a custody agreement is indeed part of the public record, then the protective steps needed for privacy may no longer apply. For most states, these steps focus on who can actually see the agreement as part of the public record search process.
Typically, access to agreements where custody is a point of concern begins with the custody filing date. From that point forward, the public can request copies at their own discretion. If the interested parties wish to make changes to this practice, they must petition the court to seal the record. For most courts, sealing is the most effective way to conceal information about the public’s involvement in legal custody proceedings. This process is extremely selective and, in most jurisdictions, only allows those involved in the case to read the records. Thus, it’s important to understand what constitutes "involved."
Judges, lawyers and private investigators are among those who can access court files to support their work. How court files are used is often taken into account when determining whether or not access should be allowed or restricted. Sealing the record with the court does not restrict copies from being made. However , when the transaction is completed, the requests made are removed from the public record. While the layperson may request a copy for any reason, it’s up to the person ordering the copy (basically the requestor) to provide a valid reason for accessing the record in the first place.
Often, specific permission is needed before the requestor can take a look at the file. In Oklahoma, for example, parties involved in the court action are entitled to a copy of the file free of charge. However, people outside of the case are required to pay a fee per page to see the information. Their form of the record is sometimes stamped with a seal that indicates they were not involved in the filing process. This way, the public is not shown who filed the case or why.
From a physical standpoint, the process of searching state courts is simple. The person making the request goes to the courthouse with the rope number in hand. The court clerk can then pull the file for viewing.
Maintaining Confidentiality in Child Custody Agreements
In some cases, the public disclosure of information contained in a custody agreement could pose a risk to the safety or well-being of the child. If either parent has a history of violence or abuse, for instance, then the release of information that could identify his or her whereabouts or give clues about the location of the child could put the child in harm’s way. The good news is that there are legal steps that can be taken to mitigate the risks inherent in the public disclosure of custody agreements. For example, if the shareable components of an agreement that contain basic information about the custody order are not sufficient for purposes such as enforcing the order in the event of a violation, then one can seek in a petition to seal certain components of the order. In such cases, a court may agree to release only a redacted version of the order that deletes from public view information particular to a child or family that could otherwise be used to identify a home address or otherwise make a person or location a target for violence or abduction. In such cases, the judge is likely to proceed cautiously, carefully weighing the potential risk to a child or parent against the need of custodial parents to obtain information relevant to past and future violations of their custody rights.
Meet With a Family Lawyer
Consulting with a family law attorney is vital when navigating child custody issues. They can provide important information about the laws and specific legal procedures in your state as well as ensure that you understand how and why your agreement is a matter of public record . Visiting with an experienced family law attorney with knowledge of your local courts and judges is the best way to get advice on whether or not you should pursue a modification of your current agreement and its confidentiality. The guidance of an attorney can help you understand your legal rights, and possibly keep your prolonged battles private.