Child custody has always been one of the most contentious issues couples face when ending a marriage. Fortunately, mediation, an alternative to going to court, can smooth the path to settling custody matters.
In the past, parents would participate in child custody mediation only when a judge ordered them to. Now many parents recognize the benefits of child custody mediation and decide to work with a mediator on their own.
The goal of child custody mediation is to create a cooperative environment where parents can negotiate who will have custody of the children and how parenting time will play out. At the end of successful child custody mediation, the parents come away with a written parenting agreement.
Parents can get the most out of child custody mediation—whether private or court-ordered—by coming prepared. So here's a checklist—covering what to be ready to cover and what to bring—to help you succeed.
Child Custody Mediation Checklist
What to Be Ready to Discuss
- Legal and physical custody of the children.
- Parenting time.
- Transitions of custody.
- Costs of sharing custody.
- Holidays and birthdays.
- School vacations.
- Schedule modifications.
- Dispute resolution.
- Unique Challenges.
What to Bring
- Court documents.
- Your proposed parenting plan.
- Your calendar.
- Your child's school calendar.
- Your child's extracurricular calendar.
- Contact information.
- Directions to the meeting.
- Payment for the mediator.
- A sound body and mind.
- The right mindset.
What to Be Ready to Discuss in Child Custody Mediation
One of your first steps should be preparing a checklist of custody-related topics that are important to you and that you hope to work out in mediation. Below is a list of issues to get you started, but if there are any others that are important to you, add them.
- Legal and physical custody of the children. The parent who has legal custody will be responsible for making the important child-rearing decisions on matters such as education and religious training. Physical custody refers to where the child will live on a regular basis; the parent the child lives with most of the time is known as the "custodial parent." In most cases, regardless of the division of legal and physical custody, both parents will continue to have certain parental rights and responsibilities.
- Parenting time. Also known as "visitation," this is the time the child spends with the parent who doesn't have physical custody. Creating a visitation schedule can involve a lot of juggling of a lot of factors, such as work schedules and extra-curricular activities.
- Transitions. Swapping custody—the act of picking up or dropping off the child when it's time for the child to be with the other parent—goes more smoothly when the parents have a clear plan for where, when, and how it will happen. Usually, the transition takes place at the child's residence. But what works best for you depends on your circumstances. If you and the other parent aren't on good terms, transitions can take place at a neutral, public location such as a local recreation center or library parking lot.
- Costs of sharing custody. Sometimes there are expenses associated with sharing custody. For example, when parents live far away from each other, getting to and from the transition location might be expensive. So it's good to have an agreement about how each parent will contribute to those expenses. Depending on your state's law, you might be able to account for these costs in a child support order, or you might have to work it out separately.
- Holidays and birthdays. Not being able to be with both parents on big days is often hard on kids. You can make it a bit easier on them by having a firm plan for dividing up holidays and birthdays each year. Think about both the short term and the long term: For example, will the schedule be the same each year, or will it alternate?
- School vacations. Especially if both parents work, you'll need to figure out how to care for your child or children when school isn't in session. For example, will your custody schedule remain the same during vacations? Will your child attend camps or day care?
- Schedule modifications. Something is bound to come up from time to time that interferes with your parenting schedule—for instance, a child or parent being sick. Think about how you can balance hiccups in the schedule—for example, if one of you is too sick to take care of your child, will there be a make-up day?
- Communication. Even if you and your co-parent aren't on good terms, you need to communicate about your child. Think about what will work best for you—for example, if talking on the phone is uncomfortable, maybe texting is a better option. You'll need to make sure that the methods of communication you agree on are reliable so you can reach one another in an emergency.
- Dispute resolution. When you and your co-parent can't agree on something—for example, whether your child can go away to an overnight camp—having a plan for how to work it out will make the disagreement easier on everyone. Is there a friend or family member you can call on to be a tie breaker? How much say in the matter will your child have? And, if you're unable to resolve the problem informally, will you try mediation or head straight to court?
- Unique challenges. If you can envision situations that might make your parenting agreement ineffective, think about how you would like to handle them. For example, if your co-parent has active substance abuse issues, should parenting time be supervised? Should the supervisor be a trusted family member or friend, or trained personnel at a court-approved facility? Or, if you have a child with special needs, are there particular practices you and your co-parent should follow to help them?
What to Bring to Child Custody Mediation
Your mediator will probably give you a list of things to bring to mediation. Most of the must-haves will be documents that relate to your child. Even if the mediator asks you to provide these documents before mediation, bring paper copies if you have them.
Here's a list of what many child custody mediators request, along with some additional items that might make life easier for you on the day of the mediation.
- Court documents. If you've filed a petition for custody in court, bring a copy of it and any related documents. Also bring all court paperwork relating to your divorce (if applicable) and custody situation.
- Your proposed parenting plan. Depending on how much you've prepared, you'll have notes on the topics covered above; these might be able to serve as a sketch of a parenting plan. Or maybe you've gone further by actually typing up a proposal. However detailed it is, bring your proposed plan and any other relevant notes to your mediation session. (There's no requirement that you share your notes or plan with the mediator or your co-parent, though.) Even if your co-parent rejects your proposed plan outright, by having a proposed plan, you'll get a better grasp on what issues need to be decided and the outcomes you'd like to see. (Also, keep in mind that if you go to court instead of participating in private mediation first, custody laws in most states will require you to provide your own proposed parenting plan.)
- Your calendar. Be ready to discuss your day-to-day work schedule as well as your long-term vacation plans and other commitments. If your work schedule varies, bring documentation showing how—and when—your schedule is determined.
- Your child's school calendar. Make sure you have a calendar that shows days off, early dismissal days, parent-teacher conference days, and any important field trips. If you have the schedule for the next school year, bring that, too—even if it's just tentative.
- Your child's extracurricular calendar. Write down the schedule of all the extracurricular activities that your child participates in or plans to participate in. If you can, also bring notes on when signups for the activities happen. Don't forget to include seasonal activities that might not be happening—or even scheduled—yet.
- Contact information. Bring the contact information for important people and places in your child's life. For example, you'll want to have the names and contact information of potential babysitters and emergency contacts on hand. It might also be helpful to have the contact information for your child's school, doctors, and extracurricular activity providers.
- Directions. If you're mediating in person, make sure you know how to get to the office and how long it takes so you can arrive on time. If you think parking might be difficult, ask the mediator about parking options near the office.
- Payment. Unless you're participating in free mediation services (for example, court-ordered mediation), you'll need to pay the mediator. Before the session, ask the mediator about ways to pay, and make sure you and your co-parent agree about how to share the fees.
- A sound body and mind. Mediation can take hours, and you might be physically and emotionally drained by the end of the day. Get a good night's sleep, and bring lunch, snacks, and drinks in case the mediator doesn't provide them. And wear layers in case the office is too hot or too cold.
- The right mindset. This is probably the most important thing to bring. Hopefully, both you and your co-parent are participating in mediation because you want what's best for your child or children. Try to keep the kids' interests front and center throughout the mediation. Patience and an open mind will help you get through the day and work towards a resolution that will work for everyone.
After Child Custody Mediation
Successful child custody mediation results in a written parenting agreement that both parents sign. Once the agreement is finalized, you'll need to submit it to the court to have it approved by a judge and entered as an order. (Some mediators will actually file the paperwork for you.) Once the court enters it as an order, your negotiated custody settlement agreement is as binding and enforceable as any other court order.
If you're not able to agree on child custody, one of the parents will have to file a custody petition so a court can decide the matter. Unless you and the other parent are able to settle without mediation, a judge will then evaluate what's in the best interests of the child and enter an order based on an assessment of the facts and state law. When a child custody matter goes to court, many parents find it helpful to hire an attorney to help them navigate the system and argue their position in front of the judge.
Whether your child custody arrangement comes from an agreement or a judge's decision, you might be able to change it when there is a significant change in circumstances. Courts often modify child custody orders, for example, when one of the parents wants to move to another state or has a major change in employment that will affect the amount of time available to spend with the child. If you and your co-parent can agree on the modification—with or without the help of a mediator—you can jointly petition the court to modify the agreement.