Do we have to go to court to change custody from the mother to the father if both parents consent?

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Do we have to go to court to change custody from the mother to the father if both parents consent?

The mother has full custody of the 2 boys but is unable to provide a stable home. She would like to grant full custody to the boy’s father. The boy’s father wants full custody and will be moving to Mexico in the next few months. Can the father issue a letter entailing all details and notarize it. Will that suffice?

Asked on September 8, 2011 under Family Law, Kansas

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

No, it will not,in my opinion, protect the Father and the children in this set of facts.  The Father is not only taking custody but he is moving out of the country with the children.  Without a legal agreement between the parties - and I mean a real legal agreement - that a court so orders, or an order of the court after a modification request is made, the father is in violation of the agreement and could be charged with kidnapping the kids. You have not indicated why the Mother can not provide a stable environment.  If she herself could be seen as "unstable" in any sense of the word then you would prefer the court to order the modification rather than an agreement between the parties.  My concern is that she could be come "stable" and try and set aside the agreement for lack of capacity to contract.  Please seek legal help.  Good luck.


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