When parents divorce or separate, custody issues are usually the most difficult to resolve. Both parents love their children and want to be a part of their everyday lives, so it's often difficult for them to reach a visitation and custody agreement. For many parents, working with an experienced family law mediator can help.
What Is Mediation?
Many divorcing couples use mediation to help settle their divorce-related issues, such as support, property division, and child custody. In divorce mediation, spouses hire a neutral third party (the mediator) to help them discuss and resolve their disagreements. Most divorce mediators are experienced family law attorneys, who have completed specialized mediation training. Unlike a judge or an arbitrator, a mediator doesn't make decisions, but rather helps couples reach their own agreements. For more information, see Divorce Mediation FAQ.
Preparing for Child Custody Mediation
There are several important steps you should take before you start child custody mediation:
- Consider getting legal advice from an attorney: It's best to walk into mediation with a solid understanding of your custody rights and responsibilities.
- Write out detailed daily schedules for you and your child.
- Prepare your own custody and visitation proposal.
- Gather all relevant records regarding your child, including important medical records, report cards, and any letters from your child's therapist.
When preparing your custody proposal, be sure to consider any special circumstances like holidays and birthdays. Also, remember to plan for exchange locations and transportation details, such as which parent will drop off or pick up the child for scheduled visits.
Steps in the Mediation Process
Although child custody mediation is normally voluntary, in some states, parents must complete a mandatory mediation process before a judge will issue any court orders. In either case, the steps involved in the mediation process are the same:
- meet with the mediator
- identify and categorize the contested issues
- discuss solutions with a give-and-take attitude, and
- reach, draft, and sign a custody agreement
The amount of time you'll spend in mediation depends on several factors, including the number and complexity of the custody issues and the parents' willingness to reach an agreement.
Come to mediation ready to listen and make some concessions. Custody mediation is not the place to hash out old fights about what went wrong in the relationship: The focus should be on getting to a good place for your children, and your custody plan must be tailored to meet your child's best interests (not your own). Whether or not you walk away from mediation with an agreement will depend in large part on your ability to work with your ex and compromise, where appropriate.
The mediator will sit down with both parents (and their attorneys in some cases) and explain the grounds rules, including rules about confidentiality. With some limited exceptions, everything that's said during mediation is supposed to be confidential and cannot not be used later, for example, as evidence in court. Remember that the mediator doesn't represent either of you and can't give you any legal advice. The mediator's only job is to help you reach a custody agreement you can both live with.
Identify and Organize the Issues
The mediator will help you determine the child custody issues that need to be resolved in your case. These issues will normally be categorized in terms of priority, such as issues that need to be resolved right away (kindergarten applications are due) and those that are more complex and may have global implications for the family (one parent is planning to introduce a new romantic partner). Sometimes, it's better to tackle the easy issues first, so that a few early successes in the beginning of the process might lead to better cooperation with the difficult issues later.
It's useful to have the custody issues divided into five layers:
- the regular custody and visitation schedule
- the list of exceptions that override the regular schedule, such as holidays and vacations
- how the parents will communicate with each other about the children
- special issues, such as religious training, medical care, extracurricular activities, and private school, and
- the method for changing the custody agreement in the future.
The time spent on each layer will depend on your family's situation. For the mediation process to work, you each need to openly discuss what you think is fair and be willing to listen to the other side. You should always be guided by what's in your child's best interests.
Prepare and Sign the Custody Agreement
Once you've resolved all your custody issues, the mediator will help you prepare the child custody agreement. Carefully review this document—a legally binding contract—to make sure it accurately reflects your understanding of the custody arrangement. Your attorney should also examine the agreement before you submit it to the court for approval.
Trying to resolve a child custody dispute can be overwhelming and even painful. You will have to consider schedules, locations, vacations, holidays and, in some cases, a child's preference. But, if you can both agree that your child comes first, then with the help of the mediator, you can settle your differences in a fair way and without the stress and expense of a child custody battle, and possibly a trial.
Questions for Your Attorney
- Can you give me legal advice throughout the mediation process? Will you attend the mediation sessions?
- What happens if we can't agree on anything during mediation?
- How hard is it to make custody changes after we reach an agreement?
- Should I be firm about getting what I feel is important in the initial custody arrangement?
- Which family law mediators would you recommend for my case?