Child Custody Mediation - How and Why

It is by no means uncommon for parents to decide that they no longer want to live together, be married, or remain partners with each other. This inevitably leads to issues regarding how they will handle custody of their children once they are no longer living together. It is equally common for parents to have strong feelings about which of them will have custody and when or under what circumstances the other parent should spend time with the children. Because feelings of anger, disappointment, and fear of change often accompanies the decision to separate, those feelings can easily overshadow a parent's ability to discuss and resolve these issues in a manner that would be in their children's best interests. In response to the conflict that often arises between separating parents, the most typical response is for each to hire an attorney to "fight" on their behalf and represent them in court. This process is known as litigation, and in the family law context it is known as child custody litigation. It is by nature an adversarial and contentious process where each side "fights" against the other to "win." This is why the process is often described as a custody "battle." Unfortunately, it is a fairly undisputed fact that court is the last place where child custody issues are best resolved. Litigation typically escalates the conflict that exists between the parents. Litigation creates an immense amount of stress for all involved, including the children, it is very expensive, and takes a significant toll on the entire family. Child custody orders may well be issued by the court, but meaningful resolution is impossible in a process that is by its nature adversarial – where both sides "fight" to "win" leaving the other side to "lose."

Parents often do not realize that when they choose to litigate custody, they necessarily give up control of what will happen to their children to a complete stranger – the judge, who for the most part never meets or knows the children. Yet, when parents choose to litigate custody, it is this stranger who will make some of the most important decisions that must be made on behalf of the children. Decisions such as where the child will live, which parent the child will live with, in which home the child will live, when the child will spend time with the other parent, what school the child will attend, whether the child needs counseling or tutoring, and many other child related issues on behalf of the child who remains unknown to the judge throughout the entire process. We often ask parents to imagine that instead of trying to determine child custody issues, they were merely trying to purchase a home. It is inconceivable that anyone would turn over all control over which home to choose to a complete stranger -- someone the parents don't know, have not chosen, have never met, and who doesn't know you. Yet, that is what is done by parents every day when the decision is made to "let the court" decide where the children will reside and which parent will have custody.

In addition to the problems that result from turning over complete control of the most important decisions to be made on behalf of children – to a complete stranger, parents must also consider the effect that litigation will have on whatever family structure is or may be left after separation. While parents may be divorcing or separating from each other, they are not divorcing their children. In most cases, both parents will continue to have a relationship with their children for the rest of their lives. That will not change. Those children will continue to have birthdays, graduations, special occasions, marry, and even have children themselves. Parents need to consider what lies ahead. They need to determine whether or not their children will be able to live a relatively normal life, maintaining a good and stable relationship with both parents, and having both parents involved in all of the important aspects of their lives as time goes on. The alternative is that children are forced to live their lives between two bickering parents who hate each other or have nothing but animosity towards each other. That is extremely harmful to the children, and it is likewise neither good nor healthy for the parents, each of whom will continue to suffer the consequences of the custody "battle." Whatever anger and animosity exists between parents when they begin the "battle" is typically increased exponentially by the time one of them "wins" and the other "loses." That is why the end of a custody battle it is often referred to as the bitter end – because that's all that is left – bitterness.

Often, parents want to go to court because they want the judge to know how terrible the other parent is, what the other parent did or didn't do, and to validate that the custody battle is the other parent's fault. But that simply does not exist. It doesn't happen. It's not an available option. The courts in California are incredibly overloaded, underfunded, and have extremely limited resources. The courts want to do what is best for children but they have neither the time nor the resources to permit them to determine what that might be in each and every case. The courts do not have a magic wand. They cannot pull solutions to complicated problems out of a hat. Judges are for the most part good people who mean well, but their hands are tied by so many factors over which they have no control – meaning that the options available to them are simply very limited.

It is often helpful for parents trying to determine how best to resolve their child custody disputes to spend time in their local family law court rooms merely to observe what goes on. It's not pretty. It's often not kind, touchy-feely, or even fair. But when one considers the excessive number of cases assigned to most family law judges, the lack of funding and resources available to them, the lack of sufficient time, the delays built into the legal process, and the limitations imposed by law – the courts are simply not equipped to resolve complex child custody matters.

This leads to the issue of how and why child custody mediation is a far better alternative in most cases. In child custody mediation, it is the parents who retain control over the decisions that are made on behalf of their children. In mediation, the parents choose the mediator with whom they will work, the parents have an opportunity to get to know the mediator and for the mediator to get to know them. Although all mediators have their own style or approach regarding how mediation is conducted, in our office the mediator typically meets the children, tries to get a solid understanding of each child and their needs, feelings, and concerns, and is often open to receiving and considering collateral input -- such as information from the school, the teacher, the pediatrician, a therapist, and the like -- so that the mediator can help parents work towards decisions that are truly in the best interests of their children. Whereas it often takes many months to obtain a court date, mediators keep their own calendars, are not over scheduled, and are much more available to the parents with whom they are working. In mediation, the parties and the mediator discuss and agree on how the mediation will be conducted, what it will include, and how and when it will be concluded. None of these things happen nor can happen when parents instead choose to go to court. It cannot be emphasized strongly enough how important it is for parents to have the opportunity to make joint decisions on behalf of their children. Mediation does not encourage conflict or hostility between parents in the manner that litigation does. Child custody mediation is typically very child focused. A great deal of consideration is given by the mediator to understanding what would be in a child's best interests and how best to meet a child's needs. Those issues are then discussed and negotiated with the parents, and it is the parents are encouraged and assisted in an effort to help them focus on what is best for their children, rather than their anger at each other.

It is often said that in child custody cases, parents need to learn to love their children more than they hate each other. It is the parents who are able to do precisely that who will be most successful in mediation and whose children will be most able to survive the consequences of divorce and separation.