Family Law

Common Issues During Child Custody Mediation

By Kristina Otterstrom, Attorney
In order to make the most out of your child custody mediation, you’ll need to come prepared and ready to negotiate.

What Happens at Mediation?

Mediation can take place at any point during a custody case: A judge may order you to mediate early on or you may end up there just days before trial. At your mediation, a trained child custody mediator will act as a neutral third-party and will help you and your spouse reach a custody agreement. In order to help spouses come to an agreement, the mediator will:

  • identify the issues that need to be resolved
  • explain what the local laws say about a particular topic
  • discuss what might happen in court
  • offer some possible solutions, and
  • write up the custody agreement, which will include a parenting plan or visitation schedule.
However, it's important to remember that a mediator can’t give you or your spouse any legal advice.

What Child Custody Issues Will Be Discussed?

A successful mediation should resolve every custody issue in your case—unresolved questions will have to be addressed at trial. Because of this, it’s in your best interests to try and work with your ex to come up with a fair parenting arrangement. Generally, a mediator will guide the spouses through the sessions, but it’s still a good idea to come prepared to discuss the following:

  • where the child should live
  • either parent’s plans to remarry
  • custody changes in the event of either parent’s relocation
  • holiday visitation
  • child support and health insurance
  • consistent discipline
  • religious upbringing
  • child care arrangements
  • the child’s education
  • extracurricular activities for the child, and
  • the child’s unique medical or educational needs, if any.

The more prepared you are coming into the mediation, the more likely you’ll be able to reach an agreement. Your child’s best interests should be at the heart of your custody negotiations. Keep in mind that a judge has the power to undo your custody settlement if it doesn’t clearly serve your child’s best interests.

Considerations for Your Parenting Schedule

A parenting schedule will be the most detailed part of any custody agreement. The schedule should designate a custodial parent and create a weekly schedule for visits. For example, an agreement may specify that the child will spend the first four days of each week at the custodial parent’s residence and the other three days with the noncustodial parent. A good schedule will also set rules for where and when child exchanges will take place.

Holidays and vacations are an important component of any parenting arrangement. Many states set forth statutory recommendations for holiday visits. You can follow your state’s schedule or create your own, which should accommodate your family's particular needs and any planned reunions, vacations, and special family holidays.

Mediation allows you to tailor your agreement in ways that aren’t possible if you go to trial. A family court judge will not be able to consider the details of your particular case in the same way a mediator can. A mediator will take the time to listen to how your family's daily routines play out and why, and then come up with a few creative solutions for your particular scheduling dilemmas. Unfortunately, family law courts are far too busy to devote that much time and attention to each custody case.

What Should I Bring to the Mediation?

Although mediation isn’t trial, you should come prepared with documents that support your position. Your ex may be more likely to agree to your terms if you have evidence that shows your child is succeeding in school or has unique educational needs. Moreover, you’ll need income information to calculate child support. Additionally, copies of school schedules and activity calendars will help you negotiate parenting time.

Questions for Your Attorney

  • What happens if I can’t reach an agreement at mediation?
  • I think a joint custody arrangement is best for my child, but I’m worried that my spouse plans to move out of state after we divorce. Could I risk losing my child if I agree to joint custody?
  • I am planning to remarry after my divorce is final. Should I disclose this at a mediation? How will my remarriage affect custody?

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