As every parent knows, it is impossible to work together without trust. Custody litigation, by its nature, eliminates trust — to the detriment of the children.
The most basic reason why the current system for resolving custody issues is so bad for children is perhaps the hardest to cure. When parents are breaking up, many assume that they will go to court and that a judge will decide who gets custody. The better alternative is not as well known.
Mediation helps people to decide, between themselves, how they will raise their children even though they will no longer be in a relationship with each other. Unfortunately, rather than seek a mediator, many people currently go to court first. Even when people go to a mediator first, when it becomes too difficult, many then go to court, which they see as the “default” simply because it’s a better-known forum.
So why is litigation so much worse than mediation? First, litigation is scary, and fear leads to anger. Anger leads to the “fight or flight” response, and the fear of fighting over children in court intensifies anger that already exists. Even getting served with a petition that lists your ex as a “petitioner” and you as the “respondent” is enough to make your blood boil.
Once in court, if your child is old enough to express opinions on the application for custody or visitation (in the judge’s opinion, sometimes as young as four), then your child will be assigned an attorney — an attorney who you do not know from a hole in the wall. That attorney has to interview your child outside of your presence. If the attorney determines that your child is unable to use independent judgment to decide what he or she wants, then that attorney — who may or may not be a parent or have any knowledge about child development — has to take a position based upon his or her own opinion about what is in your child’s best interests.
Parents have no say at all in the position that the attorney takes. If the attorney determines that your child is able to exercise independent judgment about his or her position in the case (which usually translates as the child being at least seven years old), then the attorney must, except in very unique circumstances, advocate for what your child wants.
If your child is 12 and you don’t let the child use social media, but your ex does, and your child wants to live with your ex for no other reason, then the attorney has to advocate for your child to live with your ex.
While the attorney for the child’s position does not take away the judge’s ability to decide otherwise, the position of the attorney for the child is very important — even if the position is based upon nothing other than the child’s wants.
Unless you qualify for assigned counsel, you and your ex will pay for the whole show. You may even be ordered to pay for the attorney for the child, even if that attorney bashes you in court. You may also have to pay for a forensic evaluation, where a psychologist evaluates you, your ex, and even your child, to help the court to come to a determination.
Custody cases can, and do, bankrupt people. The only way to limit the expense of any litigation is to settle the case.
As you can see, the very nature of custody litigation creates such animosity that it makes settlement progressively more difficult.
The easier, softer way is to try to come up with an agreement with your ex about custody issues before going to court. This may be no easy feat, and it may be extremely frustrating. However, for the reasons that you have already read, it is probably easier than litigation. This does not apply in cases where there is serious domestic violence, child abuse or neglect, or parental alienation.
If I have convinced you to talk to a mediator, please do your homework before hiring one. Not all mediators are lawyers, and even those who are can’t give you legal advice. A lawyer can advise you about whether the settlement options being discussed in mediation are fair, and more importantly, whether they are likely to give you a good future. We can also advise you about any issues that should have been discussed that were missed, and whether the proposed settlement has “holes” that leave you vulnerable to future litigation.
Do you have any questions about your custody case? Don’t hesitate to reach out to me with your questions or concerns.
Stay tuned for the next installment of my “Just the Facts” blog series on important family law matters.
Joseph H. Nivin, Esq.
The Law Offices of Joseph H. Nivin, P.C.
118-35 Queens Boulevard, Suite 1220A
Forest Hills, NY 11375
The Chanin Building
122 E. 42nd Street, Suite 2100
New York, NY 10168