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.
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 help divorcing or unmarried parents 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 might help them prepare for mediation, provide coaching for the negotiation process, and prepare or review any resulting agreement.)
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.
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 non-emergency medical treatment. Unless one parent is 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.
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.
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. Also, 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.
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:
Keep in mind that software programs and smartphone apps can help parents coordinate all aspects of custody and parenting time, including communications.
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:
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, marriage and family therapists, 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.