Joseph Pandolfi, Retired Judge -
Divorce is an inherently painful process that can be all the more challenging when children are involved. Fighting over child custody issues in court can intensify the pain for all those involved—not to mention the expense.
Fortunately, disagreeing couples can get help working toward solutions for their family somewhere other than court. Child custody mediation exists precisely so that parents who just can't seem to agree don't have to take on the financial and emotional costs of court battles.
What Is Child Custody Mediation?
Mediation is a method of “alternative dispute resolution” (ADR) that has become a mainstay in the world of divorce. When it comes to child custody, mediation is designed to allow divorcing or unmarried parents to reach an agreement on legal and physical custody of their children without the pain and expense of a traditional court contest.
In a mediation session, spouses meet with a trained mediator, usually in an informal setting (such as the mediator's office), or sometimes online. Think of the mediator as a guide, navigating the couple through the maze of marital issues they disagree on. (Sometimes the spouses work with a mediator and otherwise handle the case themselves; other times they each have an attorney who guides them through the mediation process.)
Unlike a judge or arbitrator, the mediator doesn't make decisions on the disputed matters. Rather, mediators use their knowledge and skill to try to facilitate a compromise that both spouses can live with. In divorce cases, a successful mediation will normally lead to the preparation of a written settlement agreement.
Although many issues in a divorce can be contentious, child custody and parenting time are often the most emotionally charged and difficult for families to agree on.
Child Custody Overview
Child custody isn't the all-or-nothing proposition it's often thought to be—one parent gets the kids, the other doesn't, end of story. It's well established that children fare better when both parents are an integral part of their life, and that's the goal the courts strive for in custody cases.
At its core, child custody includes two basic concepts: legal custody and physical custody. Legal custody relates to who will make the decisions regarding the important matters in a child's life, such as education, religious upbringing, and nonemergency medical treatment. With the exception of a parent being unqualified for some reason, courts prefer to have parents share legal custody.
Physical custody has to do with where a child will primarily reside. To a large degree, determining physical custody depends on where each parent lives, with the aim being to provide for an arrangement that best suits the child's needs.
In all custody matters, doing what's in the child's best interest is the court's guiding principle.
Child Custody Mediation Basics
Although many issues in a divorce can be contentious, child custody and parenting time are often the most emotionally charged and difficult for families to agree on. Child custody mediation is intended to help tone down the hostility, for the sake of both the parents and their children.
Court-Ordered vs. Private Child Custody Mediation
Child custody mediation can be either private, where the parents voluntarily participate in the process, or ordered by a court. The law in a state will determine whether and when parents go to court-ordered mediation.
Court-ordered mediation is often free. But private mediation allows the parents to have more say in the process and tends to be more successful. Despite the upfront cost, private mediation can actually save the parents a lot of money because of the court costs and lawyers' fees that come when there's no agreement.
Child custody mediation is also typically more cost-effective than going to court, because you're paying a mediator to help you come to an agreement, rather than asking your attorneys to battle it out in court with both charging you an hourly fee to do so. And, you have a say in when the sessions will take place. That's a luxury that is practically nonexistent in the court system.
Divorce laws in most (if not all) states mandate custody mediation once the divorce process has begun if the parents can't come up with a parenting plan on their own. So even when couples who can't agree haven't opted to pursue mediation before filing for divorce, it's virtually certain they'll be ordered to participate at some point. In light of this, it's important to learn how to approach mediation.
How to Prepare for Child Custody Mediation
First and foremost, remember that custody in general, and mediation in particular, isn't primarily about the parents. It's about the children. You have to make a commitment to do whatever is best for them, and that starts with being prepared.
Here are some quick tips on getting ready for a mediation session:
Try to get plenty of sleep the night before. Mediation can be stressful, so be sure to take care of yourself. It's much easier to stay calm and think clearly when you're rested.
Resolve to keep an open mind. Remember, it's not about getting everything you want. Your spouse may have a different perspective on what's best for the children. Try to understand where your ex is coming from instead of immediately digging in. The mediator may also have suggestions for custody and parenting time that you haven't thought of.
Sketch something out. Write out a proposal of what you believe would be a fair custody and parenting time arrangement. Sketching out a plan can help organize your thoughts and provide a starting point for discussion. Include a checklist so you don't lose track of issues that are important to you. Remember to include things such as:
-How to handle transitions, meaning picking up and dropping off the children when it's time for them to be with the other parent.
-How to share the cost involved in travel if that's a factor (such as when the parents live far away from each other).
-How to divide holidays throughout the year (for example, whether the schedule will be the same each year or will alternate) vacation sharing, for school breaks and summer.
-How to deal with minor changes to the agreed-upon schedules, like when a child or parent is sick
the best way for parents to communicate with each other (phone and/or email, for example), and
anything you feel could be a potential problem, such as a parent having substance abuse issues that need to be addressed.
Keep in mind that software programs and smartphone apps can help parents coordinate all aspects of custody and parenting time, including communications.
5 Tips for Your Child Custody Mediation Sessions:
Even if both spouses come with the best intentions, mediation can hit rough patches. When that happens it's important to take a breath and refocus your energy on what's best for the children.
Here are some more tips to achieve a successful mediation:
Don't bring up marital issues unrelated to the children. Remember that this isn't a general divorce mediation, so don't muddy the waters by bringing up anything not specifically related to custody and parenting time. Reciting a laundry list of things you don't like about the other parent is a prime example of what not to say in child custody mediation.
Be thoughtful with your language. When you reference your children, talk about “our” kids, not “my” kids. It's more inclusive and less confrontational. And try to couch your remarks in terms of what you as parents can jointly do to make the situation as positive and painless for your children as possible.
Don't let your emotions get the best of you. Expect that—despite everyone's best efforts—there will be times when your discussion can become heated. Don't use that as an excuse to unload on the other parent, which will only undo progress that's been made up to that point. Mediators are adept at calming the waters, but if you feel your emotions are getting away from you, ask to take a short break.
Don't subject yourself to abuse. If you're a victim of ongoing domestic violence, emotional abuse, or bullying, mediation might not be appropriate. If there was past abuse in your relationship, you might consider mediation but with separate sessions for you and the other parent. It might end up costing more, but at least it allows you to use mediation while, hopefully, leveling the playing field by offsetting the imbalance of power that frequently exists in abusive relationships. A successful outcome is worth the additional cost, which is still likely to be considerably less than heading to court. Separate sessions, or virtual mediation sessions, are also best if the degree of hostility between you and the other parent is so high that you can't be in the same room.
Remember, you always have options. In the event mediation doesn't work, you can still turn to the courts. Even in that case, your mediation sessions will probably have highlighted the issues you can't agree on, which will show you what you need to focus on going forward.
Finding a Qualified Mediator
Mediation has become such a popular method of settling legal issues that there's no shortage of qualified mediators. Your state court's administration office may have a list of approved mediators. There are also mediation organizations that offer lists of mediators along with their training and experience.
When researching, be sure to pay particular attention to each mediator's qualifications. You want one who's taken mediation courses specifically geared to divorce cases, including custody and parenting time. Also, be aware that a child custody mediator doesn't necessarily have to be a lawyer—many trained child custody mediators are licensed psychologists, MFTs, or social workers who have experience in child custody issues in their state.
Of course, firsthand knowledge and word-of-mouth referrals are always helpful. Recommendations from friends or family members who've been through custody mediation are often the best referrals you can find.