Is it necessary to obtain a modification of a custody, visitation, and/or child support order whenever the parents agree to a modification? The surprising answer is that parents in Maryland do not need to incur the expense of going back to court to modify their preexisting custody, visitation and/or child support order.
Most parents enter into a written settlement agreement that resolves the issue of both custody, visitation, and child support. This agreement is subsequently incorporated, but not merged, into a judgment of absolute divorce. This means that the parties’ original written agreement remains fully enforceable.
Let’s say that the parties’ settlement agreement provides that mother has custody and father will pay $1,000 per month in child support. A year later, mother is temporarily transferred by her employer to a foreign office. The parties agree that the father will have custody of the child while the mother is overseas and that the mother will now pay $750 per month in child support.
It is highly recommended that the parties sign a written modification of their settlement agreement to reflect the change in custody, visitation, and child support and then have the court enter an order to modify their prior custody and child support order.
But what happens if the parents do not sign a formal written agreement to modify custody, visitation and/or child support and they do not request that the court modify the prior custody and child support order? This issue was recently addressed in an unreported opinion from the Maryland Court of Special Appeals. Barnes v. Bradshaw (October 15, 2019). https://www.courts.state.md.us/sites/default/files/unreported-opinions/1137s18.pdf The appellate court ruled that the parties’ oral modification of their custody and child support agreement was fully enforceable.
The rationale is that separation agreements, which are incorporated but not merged into a divorce decree, are contracts, which may be orally modified by the parties, even if the parties’ original written agreement states that the terms cannot be changed except by a subsequent signed document.
The Court of Special Appeals recognized that there is a practical reason why parents should be allowed to orally modify their custody and child support agreements: “Prohibiting courts from recognizing modifications agreed to (and acted and relied upon) by parties acting in good faith and with the best interests of their children in mind would impose significant burdens on parties and often lead to inequitable results. Requiring such parties to return to court every time they agreed to what they perceive as a mutually-beneficial adjustment to their post-divorce relationship would impose a significant burden and costs on the parties, causing them to expend funds that they may agree are better saved for the benefit of the children”.
Practice Pointer: The inherent problem with oral agreements is that the memories or understanding of the parties may often differ. So if parents wish to informally modify custody, visitation, and/or child support, they should document the modification in a writing.
