Don't Litigate, Mediate! The Benefits of Mediation in Child Custody Cases
July 3, 2017
Very frequently, we see parents who are at complete odds meaning they are unable to work together to create a custody plan that works for their family. When this happens, it is up to the court to decide a custody plan. This is a terrible idea because the parents are essentially requesting a relative stranger to decide what is best for their family. So, before you say, “I'll see you in court,” we first recommend that the parents attempt mediation. Mediation is essentially a meeting where a neutral third party, called a mediator, sits down with both parents and their attorneys, to help facilitate an agreement that works for the family. In the 21st Judicial District, the hearing officers, Carolyn Ott and Erika Sledge, act as mediators in family cases. This mediation is a free service with the purpose of encouraging parents to find their own custody solutions.
If the parents can reach an agreement at the mediation concerning custody, this agreement is then reduced to writing, signed by all parties, and filed with the court for the Judge's signature. The legal term for this type of agreement is a consent decree. The heading on the document you would receive from the court will state stipulated judgment; because the parties stipulated rather than having a judge rule. The benefit of the parents mutually agreeing on custody issues, and entering into a consent decree/stipulated judgment, is that a consent decree is easier to modify. To modify a consent decree, a parent must show a “material change in circumstances”, which can mean anything from there has been a change in the child's school performance since the signing of the consent decree, or a parent's work schedule has changed and a new custodial schedule is needed.
In contrast, if the parties are unable to mutually reach an agreement at mediation and request that their matter be heard by the Judge, the legal term for the final ruling of the Judge is a considered decree. The heading on the document you will receive from the court will simply say judgment as your custody matter will have been judged by the court. Once a Judge has made a ruling at trial, the parties are essentially stuck with that ruling. To change the custody plan ordered by the judge, they must show the current custody schedule is “so deleterious to the child as to warrant its modification, or by clear and convincing evidence that the benefits of the change outweigh the damages that will be done to the child” also known as the Bergeron standard. To explain this higher burden of proof in another way, imagine a high school drop-out wanting to become a medical doctor. It's not impossible, but it is a very difficult burden to overcome. Rarely can custody matters reach this level of proof to justify a change. Examples of changes that would warrant a modification of a considered decree are new drug use by a parent or physical abuse or neglect of a child.
It is not possible in every situation for the parties to mutually come to an agreement on custody. Unfortunately, custody trials become a reality more often than the judicial system would like. These trials are costly and often have detrimental impacts on families. That is why we always recommended that the parties at least attempt mediation and try to work together to reach an amicable custodial schedule. Generally, parents are the best decision-makers for their families.