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Modification without a Court Order

Frequently, co-parents will make informal changes to their court ordered custody arrangement, by altering visitation days or by agreeing to changes concerning which parents will pay for a particular activity or who pays for a particular activity. However, even though these changes may be agreed upon by both parent, since they are not formal changes approved by the court, neither parent is legally bound to the modified agreement.

In order to formalize and make them legally binding the changes must be included in a written agreement, and that agreement must be submitted to the court for approval. The judge will consider how the change came about, how well the changes are working, and how long they have been in effect before formally modifying the agreement.

However, before a judge will modify a pre-existing custody arrangement, the parents must present evidence to the court that there has been a change of condition. Evidence showing a change of condition is necessary even if the parents are in agreement that the custody order should be modified. Danner v. Robertson, 221 Ga. 516 (1965). Thus, even if parents agree that they would like to change their custody arrangement, and even if they reduce their new agreement to writing, a court will not incorporate such an agreement into a legally binding order unless the parents have made a showing that some change of condition has occurred which necessitate a modification of custody.

With this being said, if you and your co-parent are currently operating under an informally modified custody agreement, neither one of you is legally bound to continue operating according to those informal changes. If you would like to formalize your new agreement (which we strongly recommend), seek the advice of a family law attorney who is knowledgeable about child custody matters. He or she will be able to help you take the necessary steps to insure that your new agreement continues to be adhered to by both parents.

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