Mediation is a type of legal dispute resolution method where a mediator meets with the parties to help them determine the best outcome for all the parties involved. A mediator is a neutral, third-party person who is trained in helping conflicting parties reach an agreement.
In the case of child custody, mediation can be a way for the parents to come to an agreement without creating any added stress for the child/children involved. The mediator does not have legal power to force a result on the parties, but can assist them in creating their own agreement.
What Types of Child Custody Issues can be Resolved through Mediation?
Various child custody legal issues and concerns can be addressed and resolved through mediation. These can include:
- Decisions regarding the type of custody involved (for instance, shared vs. joint custody, sole custody, and legal custody matters);
- Choosing whether one parent will be the primary custodial parent;
- Determining which parent is authorized to make legal decisions on behalf of the child (i.e., which parent has “legal custody”); or
- Proposing changes or modifications of an existing child custody order.
In addition, child custody mediation may also be a good time to determine more factors about the child or children’s background that are important for the custody arrangement. These factors can include:
- The child’s educational background and needs;
- Whether the child has any special needs, whether they be physical, emotional, or psychiatric;
- The child or children’s previous relationships with each parent (i.e., whether they relate more closely to one parent);
- Whether there have been any instances of abuse (whether abuse of the child, or abuse in the home of one of the parents); and
- Any other conditions that are specific to the child.
Note that the outcome of mediation may not necessarily be legally binding. For certain cases, such as modifying an existing custody or visitation order, the final agreement may still need approval from the court before the changes can begin.
Even once the agreement is set by the court, it can also be changed depending on the situation. If the child’s needs change or the parents’ circumstances change, like one parent has to move further away for a job, then the agreement can be changed again.
Is Mediation a Better Option than Litigation?
This depends on the exact needs of the parties. However, mediation may be favorable over litigation to resolve custody and visitation disagreements in the following ways:
- There is usually less involvement by lawyers or expert witnesses in mediation. This help overall legal costs and fees lower.
- Child custody arrangements are usually made after five to ten hours of mediation. This can be significantly shorter than the conventional court process.
- Communication is enhanced between the parties during mediation, making cooperation in raising the children more likely after divorce or separation.
On the other hand, traditional litigation may be needed in some cases involving child custody. These can include situations where:
- The parties are too contentious and cannot deal with the matter civilly.
- One party is seeking to sue the other party for legal damages in connection with child custody.
- There are various legal issues that are tied together and need to be resolved through the overseeing of the court and family law attorneys.
Again, the choice between mediation and litigation depends on the needs of the parents, as well as the concerns involving the child. All child custody and visitation matters are generally to be made in the best interests of the child. This means that the child’s well-being takes first priority over the personal desires or preferences of the parents or guardians.
But generally speaking, mediation is more cost-effective, less time consuming, and less stressful than traditional litigation paths.
Can Mediation Work Even If My Ex-Spouse and I Can’t Work Together?
Professional mediators are trained and very skilled at getting combative parents to cooperate. Mediators are also skilled at getting the parents to recognize how their own cooperation is good for the children. From there, the mediator can help the parties move towards reaching a workable agreement agreement.
However, parents can make the process easier and faster if they go in with the right mindset. Instead of being so focused on hurting each other, they must remember that the purpose of child custody mediation is to make the separation/divorce easier on the child. By approaching the mediation in a peaceful and cooperative manner, as much as possible, then they can help their child go through this difficult time.
What If There is a History of Abuse Between the Parents?
If there is a history of abuse between the parents, or the parents simply cannot stand each other, then the mediator can act sometimes as a "messenger." For instance, they might assist in conveying messages to parents in separate rooms until an agreement is reached.
In serious cases where abuse is immediately a concern, or the safety of a parent is immediately threatened, police or other authorities should be alerted. In some cases, the parent who is in danger of harm may obtain a temporary or emergency restraining order. This can help provide protection for the parent and the child until more permanent arrangements can be made.
The court cannot ignore any history of domestic violence, and it will be an issue they consider when deciding child custody. If you are a victim of abuse by your spouse, then it is important to document it and report it to the police so the abuse is officially recorded and can be considered as evidence.
Do I Need a Lawyer for Assistance with Child Custody Mediation?
If you are looking to create or modify a child custody or visitation arrangement, then it would be wise to consult with a child custody lawyer in your area. An experienced lawyer who has experience dealing with the court system and mediators alike can work to protect your relationship with the child.