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Custody & Visitation Law

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Child Custody Mediation

Mediation is a popular option for resolving family law issues, such as child custody matters involving minor children. By working with a private mediator to resolve child custody issues and visitation issues such as parenting time/physical custody, the parents can avoid the more expensive and adversarial process of going through the courts. In many states, parents are required to attend meditation before taking their child custody battle to family court.

There are several benefits of mediation in child custody cases but mediation is not for everybody. Child custody rules and family laws are different in every state. It is important to talk to a child custody lawyer in a city near you to get the best advice about the custody process in your case.

What Is Mediation in Child Custody Disputes?

Mediation is a type of alternative dispute resolution (ADR) that resolves disputes outside of the courtroom. The court system can be adversarial, which may not be best in family law matters and can sometimes involve unnecessary delays in resolving what can be time-sensitive issues (for example, financial issues like child support or who pays for a child's upcoming activity). 

In child custody cases, the parents may have to have regular contact with each other and a continuing relationship for years to come, so resolving some family conflict as amicably as possible, can help set up the parents to co-parent their minor children for years to come, and avoid more costly interventions such as parenting coordination. 

As with divorce mediation, child custody mediation can help the parents work together to develop a comprehensive parenting plan, addressing parenting time/physical custody arrangements/parenting agreements, child custody arrangements, relocation when a parent moves, etc., for the best interests of the child. 

Mediation is meant to be a non-adversarial process where both parties can have an open, constructive dialogue about the best way to move forward with their lives after the breakdown of their relationship.

In a family court mediation session, a neutral third party who is a trained mediator works with both primary parties to the dispute to arrive at an arrangement that all can agree with. Mediation may involve the neutral mediator talking to each party separately or jointly with all parties together. Mediation can resolve issues including parenting schedules and living arrangements, allowing for more flexibility to meet the unique needs of a particular family. 

Other issues concerning custody plans and other agreements between parties (how their child's medical expenses will be divided or who will cover the child on health insurance, or pay for activities, including school activities, etc.), can be discussed under the mediator's guidance. Sometimes parties may need additional sessions with the mediator to fully resolve all issues and come to comprehensive settlement agreement.

What Happens in Child Custody Mediation?

Child custody mediation sessions may be voluntarily sought out by one or both parents, but it may also be mandatory as ordered by a family court. In California, for example, a state-issued fact sheet (FL-314-INFO) clarifies that the goal of child custody mediation is to develop a workable parenting plan. If the parties can't reach an agreement in mediation, a judge may have to decide.

Child custody mediation involves sitting down with a mediator to discuss issues surrounding custody—both legal and physical—as well as any timetable concerns that either parent might have for successful mediation. The mediation process can take as little as a few hours in one session or as long as a few days over several sessions. The success and efficiency of mediation is depends on the individual parties' willingness to communicate openly with the mediator, compromise, and work together for the common goal of doing what is best for the child during what is usually a difficult time.

In many states, the family court will require parents in a custody dispute to first try and settle the issues in mediation. However, mediation may not be the best option for all situations. In relationships where there have been past incidents of domestic violence or child abuse, or even substance abuse, forcing the parties together may be counterproductive. Talk to your child custody attorney if you do not think private mediation will be best for your child.

Many judges in Texas will require parties involved in a child custody dispute to attend at least one or more mediation sessions before they can present their case to the family court judge. However, if your relationship involved allegations of child abuse, of family violence, spousal abuse, or sexual abuse, your attorney may be able to get a waiver so you do not have to deal with the trauma of trying to negotiate with your abuser through court-ordered mediation.

Custody Mediation in Different States

Child custody disputes can be more complicated when the parents live in different states. Each state has its own child custody laws and the courts will have to decide which state's laws apply, based on multiple factors. In these situations, the mediation program will allow the parents to come to an agreeable resolution without leaving it up to a family court judge. Parents are in a better position to come up with a visitation schedule that works with their lives and balances the needs of the child.

Custody Mediation Instead of Litigation

The primary difference between going through child custody mediation and taking your child custody dispute through litigation is that the two parties actually sit down to discuss the matter in person (or through online connection). Legal disputes in court are litigated by each party's respective family law attorney, which means that the bulk of the negotiations occur between the attorneys' offices, with less contact or conversation between the two parties concerning the custody issues.

The cost of family mediation is generally much lower than the cost of courtroom litigation. According to courts in North Carolina, "mediation helps reduce the stress of conflict and keeps parents focused on the best interest of children."

Another advantage of mediation for many parents is that the process is private and confidential. The final custody and visitation (parenting time/physical custody) agreement can be entered by the court but the negotiations and individual conversations are generally kept confidential in mediation. In contrast, courtroom litigation is part of the public record. Evidence presented in court, court filings, and testimony in the courtroom may all be part of the court record and could be seen by anyone seeking public access.

Collaborative Child Custody

Collaborative divorce is a developing area of family law where the parties can work together to settle the divorce, which might include child custody disputes. Collaborative child custody is another type of alternative dispute resolution where both parties have agreed to take a cooperative approach to find a solution that suits everyone involved. This may be a good option for couples who are separating amicably and not those going through a messy divorce.

The collaborative divorce and child custody process can significantly reduce the cost of the divorce, speed up the divorce process, and maintain the parental relationship of the two parties for the benefit of any children. In a collaborative divorce, negotiations are made in good faith, without strong-arm tactics that may be more common to a traditional divorce conducted through child custody attorneys.