In the last chapter, we talked about how the judge determines what’s in the best interests of the child if your case goes to court for a custody determination. As you can see, though, that’s leaving a lot of power in the court’s hands. Most separating couples don’t let the court decide their custody disputes: they find a way to work them out instead. How? That’s what this chapter is about.
In this chapter, we’ll explain several ways that you can avoid court and reach an agreement about child custody. We’ll cover options such as:
- “kitchen table” agreements, with or without a lawyer;
- standard alternative dispute resolution methods, including mediation and arbitration; and
- collaborative divorce, the newest (and, we think, best) form of alternative dispute resolution.
Let’s get started with a question that we hear all the time.
Can’t We Just Work This Out?
You might be able to! The majority of separating couples do not leave their custody determinations up to the court. Many of those couples reach amicable custody agreements without using any particular method or specialized intervention, and these agreements can be some of the best for children. After all, no judge or mediator or attorney, however terrific they may be, is going to care about your child as much as you and your co-parent do.
To determine whether you’re one of those fortunate couples who can work together without much assistance, ask yourself the following questions—and be realistic with your answers!
- Do you and your ex get along well now?
- Do you expect that you’ll continue to get along as you both move into new living situations and, eventually, new relationships?
- Have you been able to work out differences in parenting methods so far?
- Are you and your ex both able to speak up about what you need? This means staying fair and rational even when you strongly disagree about something. It means that you inhabit the middle ground: you don’t demand getting everything your way, but you also don’t cave to everything the other person asks for.
- Have you both demonstrated, so far, that you’re looking out for what’s best for your kids instead of letting your feelings get the best of you?
If you’ve said yes to these questions, you’re a good candidate for this type of “kitchen table” negotiation. But, just to be sure, we have a few disqualifying questions as well.
- Has there ever been any domestic abuse in your relationship? This is more than physical abuse; ask yourself honestly whether there’s been emotional abuse by either partner against the other or against the children.
- Do either you or your ex have a problem with drugs or alcohol?
- Do either of you struggle with a severe mental health issue, especially one that’s not being treated successfully?
Let’s suppose that you’ve passed all these questions, and you think you and your ex can reach a reasonable settlement without any special help. You’re probably wondering whether you can spare the expense of hiring lawyers.
Do We Really Need Lawyers?
Maybe not, but believe us, you’d much rather hire a good lawyer and feel like you didn’t really need her help than not hire a lawyer and wish you had! Besides, we almost always hear afterward that our clients are so glad to have had a lawyer’s help in negotiating their child custody agreement.
It’s true, of course, that some lawyers actually create conflict in a situation that might have otherwise been resolved amicably. Some lawyers are overly adversarial and can run up costs unnecessarily. However, that just means that you need to be careful about who you hire.
A lawyer brings two irreplaceable capabilities to the table. First, with a skilled and experienced family law attorney, you’ll be able to have confidence that your agreement considers every reasonably likely possibility. You won’t have to worry that in five years you’ll face an unexpected medical crisis with your child that neither you nor your co-parent will have any idea how to resolve. A good lawyer will help you face all of those possible scenarios and decide how you want to handle them. You’ll also know that you’ve been advised correctly about the law, that you’ve gotten what you’re entitled to, and that your agreement is written both helpfully and unambiguously.
We strongly believe that you should give yourself the advantage and the peace of mind of competent legal advice. You may choose some sort of a la carte service rather than a full representation approach, but the risk of having something go wrong without legal help is just too high to not at least get input from a lawyer.
But, even with help from capable lawyers, many couples can’t work out all of their child custody conflicts without a more structured approach. Let’s look now at a few of those alternative methods for resolving disputes.
Alternative Dispute Resolution: Mediation and Arbitration
Mediation is the most common option for what’s known as alternative dispute resolution, or ADR. But mediation is often misunderstood, so take whatever you may have heard, good or bad, with a grain of salt. We’ll tell you both the pros and the cons of using mediation to settle child custody disputes.
First, what exactly is mediation? Mediation allows you and your ex to decide for yourselves what would be a fair settlement about child custody through the help of a neutral third party called a mediator. Mediators may be lawyers, mental health professionals, or clergy, though they don’t have to belong to any particular profession. Basically, mediation means sitting down to negotiate with the help of a referee: someone who doesn’t choose sides but who helps you communicate better and see alternatives while keeping your child’s best interests front and center. Mediators are an excellent resource for families that just can’t seem to work it out on their own but don’t want to end up fighting in court.
The most important thing to understand about mediation is that the mediator cannot give you or your ex any legal advice. Even if your mediator is a lawyer, he’s not your lawyer. Parties in mediation almost always still need to hire attorneys. The mediator’s role is just to help you and your ex communicate and reach agreement; your lawyer’s role is to make sure your legal rights are protected. You will still have to pay for your attorney’s fees and half of the mediator’s fees.
Mediation is confidential, allows you and your spouse to retain some control over the decision-making process and work on creative resolutions to your case, and is less expensive than filing a lawsuit and going to court. The goal is to be able to reach a positive agreement that is more customized to your particular circumstances than the one you might receive from a judge. Mediators tend to work with both parents to balance their needs while serving the primary goal of the child’s best interests. Judges, on the other hand, tend to split disputes 50-50 without particularly worrying about what the parents want.
For instance, if one parent has a crazy work-travel schedule, a mediator can help you work out a unique custody schedule that fits your situation. That schedule might change week by week based on travel and work demands. When you are in court, you have given a judge the power to make those decisions for you, and then you are stuck with those decisions, whether you like them or not. The judge might simply rule that the traveling parent has custody of the children whenever he or she is in town, even if that’s not what any of you actually want. This is part of the reason why parents must attend mediation to try to work out an agreement before they can appear before a judge for a custody determination in North Carolina.
But the biggest advantage that mediation has over litigation is the way it can dispel the negativity that often surrounds child custody negotiations. A skilled mediator will ratchet down the hostility, enabling both parties to start a new relationship as co-parents and move on with their lives in a positive way. The goal of mediation is to achieve a rapid, low-cost, and reasonable agreement between spouses—and it sometimes works.
Unfortunately, we have some significant concerns about the way mediation is marketed and practiced at this point in time.
The vast majority of states do not regulate mediators in any way. There is no required training, no peer-to-peer oversight, and no way to monitor a mediator’s outcomes. Anyone can call him or herself a mediator and hang out a shingle; as a result, there can be dramatic differences between practitioners. There are mediators out there who are well-trained in negotiation skills, well-versed in legal issues, and well-equipped to handle challenging conflicts. But there are also mediators out there who are none of those things.
Many couples run into trouble with mediation because their lawyers aren’t involved in the entire process. Some couples, and some mediators, don’t have all the information they need to be able to draft comprehensive documents and agreements that account for wide-ranging possibilities. Mediating without a thorough understanding of the big picture and the variety of possible outcomes can be expensive, if not downright dangerous. Additionally, the transfer of information from mediator to attorneys opens up multiple cracks in the process, through which important bits of your agreement can disappear. We have seen cases where entire sections of documents have gotten lost in the paper shuffle between clients, mediator, and attorneys. We find that it’s safer for everyone if all the paperwork is done consistently, with a clear, orderly paper trail.
There are also situations in which mediation is absolutely NOT appropriate. For instance, an abusive person will manipulate the mediation process to take advantage of or control his or her co-parent. We feel very strongly that any hint or history of domestic violence in a relationship automatically means that mediation is not a safe option for that couple. A good mediator will recognize a power imbalance in a relationship and recommend that the parties need to hire attorneys and find another approach, so that the safety and best interests of the disadvantaged spouse can be protected. Unfortunately, not all mediators have the skills or training necessary to recognize those inappropriate cases.
We should clarify here that going to court doesn’t represent a failure; sometimes it’s absolutely the right approach. Litigation may be the only alternative in dissolving a marriage with a history of violence or emotional abuse or one with a complete breakdown in communication due to substance abuse, mental illness, or other causes. Only you can know for certain! But we believe you won’t feel confident in your decision unless you’ve fully considered the alternatives, which is why we want to help you understand all of your options.
So what about arbitration? While fairly rare in custody disputes, arbitration is another useful option for some parents. Arbitration works a lot like a court hearing: you and your ex both present your arguments for why you think you should have custody or why the arbitrator should grant you particular rights. The arbitrator then decides what to do, like a judge would if you had gone to court. Unlike litigation, though, arbitration is private; it also tends to be quicker and somewhat less expensive. Also, unlike litigation—but like mediation—parties in arbitration get to choose their decision-maker.
There are some controls on what can happen in an arbitration involving custody. For starters, the arbitrator is held to the same general standard the court would use, that of the best interests of the child. Arbitrators are specifically required by law to make rulings that are, in their opinion, in the child’s best interests. Additionally, the court play a small but important role in monitoring arbitration proceedings. This is part of the court’s parens patriae role, under which it serves as the “parent” of each child to ensure that powerless children are protected.
Weigh arbitration with caution in domestic violence cases: as with mediation, it’s subject to manipulation by an abusive party. But while arbitration isn’t used frequently in family law, it represents a useful alternative, especially for parents who recognize that they’re hung up on issues that aren’t life-or-death and who just need a neutral tie-breaker. Similarly, parents who would rather not pay for—or wait for—litigation, but who need a firm hand to resolve their disagreements without increasing the bitterness between them, may find arbitration the perfect solution.
Fortunately, there’s another method of settling custody disputes that we think holds more promise than either mediation or arbitration.
Collaborative Divorce
How can you divide 12 oranges in half and still give each party 12 oranges? If each person wants a different part of the orange—maybe one wants the zest while another wants the juice—the division can be fast, simple, and mutually gratifying. The key is that both parties must understand and appreciate what is valuable to the other. This is the appeal (get it?) of collaborative divorce law in settling divorce cases and child custody disputes.
Collaborative divorce is the most recent major development in divorce resolution. It’s a way for a divorcing couple to work as a team with trained professionals to resolve disputes respectfully, without going to court. In a collaborative divorce, each spouse has the support, protection, and guidance of his or her own lawyer. Those lawyers have completed extensive training in non-adversarial conflict resolution strategies.
Studies show that when carried out as agreed by divorcing individuals and their attorneys, the collaborative process settles issues faster than other forms of negotiation and greatly reduces the emotional trauma that families—especially children—experience in the throes of a divorce. It also significantly lowers the expenses incurred by divorcing couples, protecting families from unnecessary resource depletion at a time when funds are needed to establish two households.
Collaborative divorce is not a dispute resolution method in the same sense as mediation or arbitration. Rather, collaborative divorce is a set of voluntary ground rules entered into by divorcing couples and their attorneys. While the details may vary, the central idea is that the parties and their attorneys agree in advance that they will fully disclose all information and they will not take the case to trial. That means that if you cannot work your case out and you decide to litigate, you and your ex both have to hire new attorneys and start over.
The collaborative divorce process allows you all the benefits of legal counsel without the threat of a court battle. For example, collaborative divorce lawyers will help you make knowledgeable decisions about financial issues, including the hidden pitfalls of the tax code. They make sure you don’t make document drafting mistakes that cost both parties in ways they didn’t expect. Collaborative divorce lawyers make sure you understand the law, your rights, your obligations, and the legal effects of your decisions.
They also help make the process of separating your assets more peaceful, as they focus on positive communication methods and making requests as opposed to demands. There is a strong focus on respect throughout this process, which is one of the many things that makes it a potentially great option. This approach is much less difficult for everyone and helps build a rapport between the two sides instead of bitterness.
When it comes to children, the collaborative law process requires that both parents agree to insulate the children from involvement in the dispute. The goal is to resolve any parenting issues in the most amicable manner possible and—as always—in the best interests of the children.
For many couples, collaborative divorce is more than just a way to avoid litigation: it’s a way to learn how to resolve childcare issues and other decisions, often more effectively than they ever did during their marriage. People learn new skills and methods for cooperating and communicating. Collaborative divorce not only ends the marriage in a positive way, but it also prepares folks to move forward with their lives and lay the groundwork for a more constructive relationship rather than falling back into old patterns.
Though the negotiations of collaborative divorce often help divorcing couples put their lives back in order, the process is not appropriate for all situations. Couples entering into a collaborative process should feel confident that both parties will be honest and forthcoming throughout the negotiation process. If everything works out as planned, both husband and wife take home 12 oranges. What a positive way to begin again in life!
So, there you have it: those are the basic methods that separating couples can use to avoid going to court. But sometimes, the divide between you and your ex is too great to negotiate your way through. For example, if you’re involved in an abusive relationship, if your former partner has developed a severe substance abuse problem, or if one of you is suffering from significant mental illness, you may not be able to succeed with any of these methods.
If you’ve weighed the alternatives and decided it’s time to go to court, how do you prepare? That’s what we’ll cover in the next chapter.
