Your Family Matters

Mediation for Custody Disputes: Help Your Clients Avoid the “Litigation Wringer”

| Sep 22, 2020 | Blog

As every parent knows, it is impossible to work together without trust. Custody litigation, by its nature, serves to eliminate it.

Mediation, whenever possible, is an easier and less expensive process than litigation for your family law clients. It helps them decide between themselves how they will raise their children, even though they will no longer be in a relationship with each other.

Below is advice you can give your clients to let them know why custody litigation is so much more difficult than mediation.

Going Through the Litigation Wringer

Litigation is scary, and fear leads to anger. Anger is the “fight or flight” response, and the fear of fighting over children in court intensifies anger that already existed. 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.

This is only the tip of the iceberg. If your child is old enough to express opinions on the application for custody or visitation, then your child will be assigned an attorney whom you do not know. That attorney needs 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, must take a position based on his or her own opinion. You 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 (usually if the child is at least seven years old), then the attorney must, except in unique circumstances, advocate for what your child wants. So, 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 must 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 on nothing other than the child’s wants.

The result? Custody litigation gives children a great deal of power over their parents.

Remember that fear that we were talking about? It drives parents to go to war against each other. Mistakes that everybody makes are blown up to make the other person look like the most neglectful possible parent.

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 assigned to your child, even if the attorney is going to court and bashing you. You may also need to pay for a forensic evaluation, in which a psychologist evaluates you, your ex, and even your child. The only way in any litigation, including custody cases, to limit the expense is to settle the case, or in other words, to come to an agreement. As you can see, the very nature of custody litigation creates such animosity that it makes settlement progressively more difficult.

This same animosity creates more work for the lawyers, which makes the litigation more expensive. There might be such bad communication that the lawyers need to resolve relatively minor issues for you and your ex, such as minor modifications to the parenting time schedule for special family events. Lawyers charge by the hour for the time that they spend doing this. There are often other applications that people tell their attorneys to make, such as applications for temporary custody. If your ex asked his or her lawyer to make such an application, and you want your lawyer to respond to it, then you will need to pay your lawyer to do so. You may even need to pay the attorney for the child to respond to it, even if the attorney is supporting your ex. In some cases, the court can order your ex to pay your fees, but even if the court says no, you’ll need to pay your attorney for the time that he or she spent making the unsuccessful application, in addition to the time already spent responding to your ex.

What Is the Solution? Mediation

The easier, softer way is to reach 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, it will probably be easier than litigation. But do note that mediation is not a good option in cases involving domestic violence, child abuse or neglect, or parental alienation.

If you need a mediator, then do your homework before hiring one. Anybody can put up an ad on Google and open a mediation service, with no training or knowledge on the subject. There is absolutely nothing illegal about that. Therefore, do your research and make sure that you get someone qualified.

If you find yourself in court, make it as boring as possible. The less that’s going on, the cheaper and less stressful the process will be. Treat your child’s parent the way that you would expect someone who respects you to treat your parents. This doesn’t translate into “be a doormat.” Just don’t let anyone make you do things that make you feel ashamed of yourself. Remember that your children will always see your behavior as acceptable, so don’t do anything that you’d tell your children not to do.

So How Can Your Lawyer Help?

Lawyers with mediation experience can advise you on what actions are likely to cause your case to take the nightmare track that was already discussed, and what actions are likely to prevent it.

Your lawyer can advise you during your mediation. Not all mediators are lawyers. 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. Lawyers 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.

Of course, it takes two to mediate. If you find yourself in court because your ex is hell-bent on going there, an attorney can create a game plan to put you in the best possible position for settlement or trial. In most cases, people end up settling before they get to trial. If you can’t settle, then there will be a trial, and you will need a lawyer for that.

Conclusion

The family court system creates unnecessary animosity between separated parents, which
compromises people’s abilities to effectively co-parent. It falls on parents to come up with
alternative ways to work out parenting time and support without unnecessarily damaging their abilities to raise their children together. If you are in a situation where the other parent is not cooperating with you, then an attorney can help you to minimize the animosity, the emotional toll, and the expense of litigation. If you have a co-parent who is willing to work with a mediator, then attorneys can advise you during the process, help you to resolve issues of custody without litigation, and work with you to minimize the risk that you will need to go to court in the future.