Parents at the Crossroads: Resolving Child Custody Disputes in Court or by Private Facilitative Mediation

Whether already living under a child custody and visitation plan, or trying to agree on a plan, parents are presented with two basic alternatives for resolving disputes: go to court, or go to private mediation.

Where there is already an order, whether temporary or part of a judgment, it typically accounts for literally every hour of each child’s time. Provisions are in place for which parent is responsible for picking up or dropping off the children at school, at the other party's home, etc. If one parent is not punctual, or does not communicate well, mix-ups and friction can occur.

Also, changes in a parent's work schedule or in a child's after-school activities schedule may necessitate modification. Or, the higher wage earner, who has committed himself/herself to unrealistic numbers of hours with the children in order to save on child support payments, may find that the commitment is unworkable.

In some cases, a former spouse may have entered into a live-in relationship with a new partner, who begins to act in the role of parent to the children, causing resentment on the part of the other parent. 

If the parents are unable to agree by themselves to appropriate modification, and if feelings of hostility intensify, one or the other may be tempted to get a lawyer and file a motion in the court.

The Misleading Allure of Fighting Custody Disputes in Court

An angry spouse might go out and hire an attorney to go to court to fight for custody rights. The court fight will usually have adverse effects on the children. Among other things, a child may be pressured by a parent to relate incidents that reflect badly on the other parent. An irate parent may ridicule or revile the other parent to the child. Caught in the middle, the child may feel he or she cannot trust either parent.

An adolescent will be given an opportunity to express his/her choice as to primary living arrangements with his father or with his mother. The court may appoint an attorney or an evaluator to represent the child. Either may ask the child for his/her preferences.

Ultimately the custody issues are for the court (a judge or magistrate) to decide, if the case goes to a court hearing. But first the parents are required to attend a mediation session at the courthouse for about one and one-half hours.

The court mediator's goal is to resolve the matter and get it off the court's calendar by pressuring the parents to sign a co-parenting agreement. This mediator has insufficient time to assess the conflicting stories of the spouses. Often, when there is no prior agreement, the court custody mediator will propose a 50/50 division of the children's time between the parents. If either of the parents does not agree, the mediation is terminated and the parties are sent back to the judge/commissioner for a hearing. Depending on local court rules, the judge may or may not receive a recommendation from the court mediator. 

At the custody hearing, the atmosphere is entirely adversarial, especially when attorneys are representing the parties. Each side does what it can to win the case, including trying to make the adversary spouse look bad. The guiding principal for the judge is the “best interest” of the children, a general concept which allows the judge wide discretion in what he or she decides to order.

All judges are of course individuals, with individual viewpoints, if not biases. Some judges are believed to be more sympathetic to the mother, others to the father. Some judges grant a lot of time for the hearing; others allow a relatively short time. Some judges read all submitted papers carefully before the hearing. Others tend to rely on the testimony at the hearing. 

At the end of the hearing, the judge will rule on the issues presented and enter an order. Once the order is entered, a parent must comply with it. There is little chance of getting it changed even if a parent appeals, since the law gives the judge broad discretion.

Usually neither parent feels vindicated by the order. All the expenditure of emotional energy and time, not to mention money, leads not to satisfaction, but often to frustration. The custody order is likely to include provisions that one or the other parent would never have agreed to in mediation. 

The Wiser Course:  Private Facilitative Mediation

If both parents could have resisted their temptation to fight it out in court, they might have agreed on a mediator to assist them though facilitative mediation. 

In facilitative mediation, the parents may be asked to sit side-by-side, and are encouraged to address each of their issues together in a calm and cooperative manner. Instead of staking out a position and fighting for it, they look at the respective underlying interests (the “good things”) most important to each of them. Working with the mediator, they can brainstorm to come up with ideas and solutions to lead to agreements that are at least minimally acceptable to both.

The private mediation may take place over several sessions. If the parties are already separated, they may decide to test a possible parenting plan before returning to the next mediation session to consider the results.

For example, they may agree to a mid-week sleepover at dad's house, but then find that packing clothes and moving on a weeknight does not allow the children sufficient time to do their homework.  At the next session, they may mutually acknowledge this and try to work out another way for the dad to get more time with the children. 

In California, the law imposes "Guidelines" that determine child support payments based partly on the percentage of parenting time that the payer parent has with the children. In court, this often leads the payer parent to demand more time so as to lower his payments. This leads away from the proper objective of creating a co-parenting plan that is practical and in the best interest of the children.

In private mediation, on the other hand, the parties are encouraged to first develop a workable and beneficial plan, and then deal with the issue of child support. As long as their agreement adequately provides for the child's upkeep, and is supported by both parents, the court is likely to approve it. The existence of a unified front putting forward a carefully worked out agreement will provide the judge with a much sounder basis for his decision, rather than listening to arguments and having to make a largely arbitrary decision for one side in the limited time available.

If the co-parenting agreement is voluntarily entered into by the parties after side-by-side negotiations with the help of a mediator, they are both much more likely to cooperate in implementing the plan, and are more likely to get along relatively well, which is essential if they are to adequately perform their roles as parents. On the other hand, if the court has imposed the parenting plan, it is more likely that the parents will be hostile, and their hostility will be damaging to their relationship and to the children.

In summary, parents who are angry and tempted to go to court to fight about a custody issue may be well advised to reconsider. Rather than subjecting themselves to the discretion of the judge who is assigned to the case, and to the damage that litigation would inflict on their relationship and on their children, they may opt for the cooperation, courtesy, and careful planning that comes with facilitative mediation.