Children: Mediation versus Custody Litigation

Whereas children need the love and care of both parents, they can
adjust happily to your divorce or separation. No credible research
has ever found children to be damaged by moving between two
residences in order to spend separate time with each parent. The
research does show, however, that ongoing conflict between par-
ents increases childhood depression and impedes educational
achievement.

Children fare worst when a parent either abandons the child or is unable
to contain powerful feelings of fear and anger in the child’s presence. Child-
ren fare best when their parents maintain a functional co-parenting relation-
ship. Neither parent fears losing their children to the other. Neither harbors resentment after a bitterly contested divorce or separation.

New Resolution’s client-centered mediation protects children. We enable our clients to settle parenting arrangements without the bitterness of child-custody litigation. Assisted by a professional mediator, both parents participate in creating a parenting plan for their children. The plan describes in detail how you want to share time with your children (so-called physical custody) and how you want to make decisions about your children’s education, religious instruction, healthcare, and other important matters (legal custody). We recognize that you — not a judge or a court-appointed evaluator — have the foremost right and responsibility to decide what’s in your children’s best interests.

Independent versus Court-Appointed Mediation

We provide an independent mediation service. This means we have no contact with the court. The conversation that takes place in our mediation sessions is completely confidential. If you reach an agreement on parenting arrangements, we’ll prepare a document to record that agreement as your parenting plan. The judge will then review the agreement and, in all likelihood, sign it — either as a stand-alone parenting agreement (for unmarried parents) or as part of a Marital Settlement Agreement (for divorcing or separating parents). The agreement then becomes an order of the court. If, on the other hand, you’re unable to reach agree-
ment, you can pursue litigation (the so-called custody battle) as a last resort.

Court-appointed mediation is the first step in the alternative and highly destructive process of litigation. When parents can’t agree on arrangements for their children, California law requires that they attend a court-appointed mediation session. Prac-
tices vary from county to county, but a court mediator (or evaluator) will typically issue a custody recommendation to the judge. The court mediator may also inter-
view the children and other relatives, and the judge may order further investigation via in-home visits by a social worker. The judge ultimately decides, but the court mediator exerts great power and influence. In this process, children often suffer greatly — especially if required to testify in open court when a parent wants to challenge the court mediator's recommendation.

Modifying an Existing Custody Order

Circumstances change. For example, parents’ changing work schedules, places of residence, and health can render an existing custody order impracticable. Like-
wise, children’s needs and preferences will change as they grow older. Parents may, by mutual consent, deviate from an existing custody order. However, these informal deviations may create confusion and distress.

Our professional mediators will help you agree on a new parenting schedule whenever your needs change. You may want to file this agreement with the court as an attachment to the Stipulation and Order for Custody/Visitation of Children (FL-355) form. The new agreement can then become a modified court order.