Parents may be unable to resolve child custody issues between themselves. Child custody issues can include issues of legal custody. A parent having legal custody is allowed to make important decisions regarding how the child is to be raised and educated. Having legal custody also permits a parent to make decisions concerning the child’s medical care and religious instruction. 

Child custody issues can also include issues of physical custody. A parent with whom the child resides has what is known as physical custody.  Parents who cannot agree on legal or joint custody issues can resolve these issues using mediation or the court system (litigation).

What is Voluntary Mediation?

Voluntary mediation is a process where parents voluntarily seek to resolve custody issues with the help of a mediator. A mediator is a neutral party. During mediation, the mediator will listen to each parent’s arguments and concerns. The mediator may work by “shuttling” between the parties, listening to each party speak outside the presence of the other. 

Through this process, the mediator listens to concerns or issues raised by one party, and then informs the other party of those concerns or issues. The mediator then listens to that other party’s own concerns or issues, and then informs the first party of these concerns or issues. 

By acting as intermediary, the mediator informs each party where the other party stands on an issue. The mediator can also advise each party as to whether their position is a practical one, in light of the law and the facts of a case.

By acting as intermediary and advisor, the mediator can encourage the parties to find common ground. If the parties are able to find common ground, they may be able to reach an agreement with respect to one or more issues. 

The product of the parties’ agreement is a written document that spells out each party’s rights and obligations with respect to a particular issue. Each party signs the written document. Under the law, the document is considered a contract. This means that if one party does not abide by one or more terms of the agreement, the other party may sue in court for breach of the agreement.

Mediation is typically non-binding. This means that the parties are free to terminate the mediation process at any time. In addition, the mediator cannot impose an agreement or settlement. Any agreement must be one voluntarily accepted by the parties. 

What is Court-Ordered Mediation?

In contrast to voluntary mediation, in which parties not involved in a lawsuit agree to mediate, court-ordered mediation is mediation ordered by a court during an existing lawsuit.

In court-ordered mediation, the mediator plays the same neutral role they play in voluntary mediation. In court-ordered mediation, as in voluntary mediation, the mediator cannot impose an outcome. The parties must agree to an outcome. 

There are differences between court-ordered mediation and voluntary mediation. The main difference is that a court may order parties to mediate. If the mediation may not result in an agreement, a court has the authority to order mediation in the future.

Mediation, whether voluntary or court-ordered, is generally less formal, less expensive, and less time-consuming than litigation.

What is Child Custody Litigation?

If parties cannot reach agreement through either voluntary or court-ordered mediation, the parties must submit their dispute to a court for resolution. The court will resolve the custody dispute through a process known as litigation. During litigation, each party is permitted to make an argument to a judge as to why that party should receive custody. 

The court listens to each party’s arguments, evaluates any evidence, and then issues an order. The order is called a child custody order. The order will specify what each side’s custody rights and obligations are. A judge, when making child custody decisions, is guided by what is known as the “best interests of the child” stand.  This means the judge will consider what is best for the child. 

Factors a court considers in determining what is best for the child can include (among others): 

  • Each parent’s financial ability to take care of the child; 
  • Each parent’s mental and physical health; and 
  • The child’s own health and age. 

Courts will also take into account the nature of the emotional bond the child has with each parent. In addition, in the case of older children, courts may sometimes take into account the child’s own parental preferences.

Do I Need a Lawyer for Help with Child Custody Issues?

If you and your spouse cannot voluntarily agree about child custody, you should contact an experienced child custody attorney. An experienced child custody lawyer can advise you as to what your rights are. This lawyer can also advise you as to whether to pursue mediation, or litigation. 

The attorney can also advise you as to what to expect during mediation or litigation. The child custody attorney can also represent you at a mediation or in court.