Legally Speaking by Cassandra Savoy, Esq. OP/ED
In the family court, there are two high conflict areas where the court will require you to mediate: custody and parenting time or what we used to call “visitation” issues. Sometimes, the court will require mediation if one parent wants to relocate. The idea is that you, as the child’s parents know what is in your child’s best interest, and that you will always act in your child’s best interest.
The court really wants you as the parents to decide. Mediation allows you to work with a neutral who does not represent your interest or the other party’s interest but will help you think through the issue of custody or parenting-time schedule and perhaps offer unique solutions when the parents get stuck.
What typically happens in a custody dispute is that both parties dig in their heels. Each assumes the position that “I want the kids because…” A mediator can help you think about the various aspects of a custody issue in a methodical manner.
For example, you may want custody, but you have to be to work at 5:00 AM. The children, 6 and 9, don’t have to be to school until 8:45 AM. Your parents live thirty miles away. What is the plan? Who will get them up; get them dressed; and to school on time? If you can work that out, then maybe custody should be with you. On the other hand, if Dad lives across the street from the school, and works from home, maybe he should have custody.
Mediating Custody And Parenting-Time Issues
All divorce complaints and motions where custody or parenting time are at issue are referred to mediation. The problem with court-ordered mediation is that it is expected to be “an event!” Unfortunately, big decisions like those relating to our children’s lives are not made in forty-five minutes. Decisions about our children’s lives require time, consideration and sometimes, reconsideration of all relevant facts.
Consequently, you might do well to consider private mediation which is not expected to end in forty-five minutes with all of the decisions regarding the rest of your children’s lives made, written up, signed, sealed and delivered!
Often the issues involving our children are big and complex. They simply can’t be resolved in 45 minutes. A good mediator can help you not only address the standard pick-up and drop-off times, but help you think through the “what ifs” of child rearing between co-parents.
For example, what if Amina breaks her leg at soccer practice? What if Harold qualifies for the Olympic trials? Or, how do we co-parent Hannah who is 12 and autistic and Ali who is an over-active 8-year-old who loves sports and the out-of-doors? Do both of the children have parenting time together, or do they go to Mom’s one at a time? Individually always or sometimes together? Under what circumstances together? Separately?
The best part of mediation is that you get to find solutions that actually work in your children’s best interest. You should consider mediating parenting-time issues if you find yourself constantly returning to court trying to resolve the same issues. Statistics show that mediated settlements are more likely to be lasting than court-orders, and it makes sense. You are much more likely to do what you voluntarily agree to do rather than do what someone is ordering you to do.
