Custody: Mediation versus Litigation

Whereas children need the love and care of both parents, they can
adjust happily to your divorce or separation. No credible research
into child custody 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 parents 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

Our mediators provide an independent mediation service. This means we won’t report the outcome of your case to the court. The conversation that takes place in our mediation sessions is completely private. If you reach an agreement on parenting arrangements, we’ll prepare a document to record that agreement as your parenting plan. The judge will review your agreement and, in all likelihood, approve it — either as a stand-alone parenting agreement (for unmarried parents) or as part of a Marital Settlement Agreement (for parents in a divorce). The agree­ment then becomes an order of the court. If, on the other hand, you’re unable to agree, you can pursue litigation (the so-called custody battle) as a last resort.

When parents can’t agree on arrangements for their children, a judge may require or recommend a court-appointed mediation. Practice varies, but a court mediator (or evaluator) may issue a custody recommendation to the judge. The court mediator may also interview the children and other relatives, and the judge may order further investigation via in-home visits by a social worker. Whereas judges ultimately decide, court-appointed mediators may exert 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 existing custody arrangements impracticable. Likewise, 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 often create confusion and distress for parents. Our professional mediators can help you agree on a new parenting schedule when­ever needs change. You may then file this agreement with the court as a modificat­ion to the existing order.

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