Mediation in a Child Custody Case: Preparation Goes Along Way

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Many states require parents to attend mediation in any marital dissolution (divorce) or paternity action where child custody or visitation is at issue. The purpose of mandatory mediation is to encourage parents to work out agreements regarding child custody issues, hopefully saving children from contentious legal battles. Unfortunately, many parents do no prepare for this mediation process. They simply assume that there is no need to bring documents or otherwise prepare for the session with the mediator. Even experienced family law attorneys often neglect to prepare their clients for the mediation process. The reality is that the recommendations of a mediator often set the tone and create momentum that will continue to influence custody/visitation orders throughout the court process. A failure to prepare for mediation may haunt your position through the entire child custody litigation.

The goal of the mediator is to help the parties reach an agreement on custody and visitation. If the parties are unable to reach an agreement, the mediator will make recommendations to the court based on information gathered by the mediator during the mediation session from both parents and sometimes the minor children. When the parties to a custody dispute are not able to reach an amicable agreement, the initial mediator recommendation can have a significant and lasting impact on child custody and visitation orders. The initial custody arrangement can create momentum for one parent because courts favor stability for children. They do not like to constantly move the children around and make repeated changes to custody arrangements. You should never walk into a custody mediation without preparing to make your case for what you believe is in the best interest of your children.

Even though any relevant information will help the mediator make an informed decision, some types of evidence are obviously more important to a child custody mediator than others. If there has been a history of domestic violence or drug use by either parent, this information carries great weight with a custody mediator and the court. Unsupported allegations may be dismissed as’he said she said allegations.’ Any documents supporting these allegations should be provided to the mediator. These documents can include an incident report, police report, and/or records of arrest or conviction. Most can usually be obtained from the police or the court through an open records request. Other serious convictions may also be relevant, especially if they show a propensity toward violence or reckless conduct. DUIs, for example, suggest the other parent may engage in risky behavior that puts the children at risk. Any documents provided to the mediator may end up as exhibits to the mediator’s report and become evidence supporting their recommendations.

School records can also carry a lot of weight with a child custody mediator. An affidavit or sworn statement from your child’s teacher attesting to your involvement or the other parent’s lack of involvement with the school also can be influential. If your child is currently residing with you and doing well in school, the child’s school records should also be provided to the mediator. The school provides an objective measure of your child’s well being and thereby, your positive influence on your child. If a child is doing well in school, the mediator and court will typically refrain from making significant changes in their living arrangements.

A parent’s availability to spend time with the minor children also carries a great deal of weight with a mediator. It is not uncommon for a parent to go into mediation and request 50-50 custody when one’s work schedule makes such an arrangement unrealistic. A parent who makes this request often plans to leave the child with a babysitter or grandparent while the parent is working. Mediators and courts prefer to have minor children with a parent, rather than a babysitter or other family member. If one parent works long hours or is frequently on the road and out of town, the other parent should provide documentation to establish this with a mediator. When the other parent with the extensive work schedule unreasonably insists on a 50-50 custody arrangement and argues the child can be with a babysitter or grandparent, the mediator will view their actions as a transparent attempt to impact child support rather that a plan that is intended to be in the minor child’s best interest.

Your state’s family code and your jurisdiction’s local rules will determine the extent the mediation will control your child custody issues. Active involvement with solid and verifiable information will help the mediator make recommendations that are in the best interest of your child. Consult a qualified family law attorney in your area to assist you with each step in the process of establishing your child custody rights.

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