When a divorce case involves custody issues, those custody issues frequently become the central (and most emotional) in the entire case. And appropriately so. A parent’s relationship with his or her children can be significantly impacted by the psychological and emotional turmoil that a bitter custody battle can create. Custody issues are not made easier by a court system designed for a “one side versus the other” form of conflict resolution. The Family courts recognize this, and have designed methods (which vary from court to court) to deflect custody issues as quickly as they become known into a more cooperative and participatory “mediation” type process. Once a custody case is filed, the Family court will generally schedule custody mediation with its own internal mediators. This system is generally known as Family Court Services (“FCS”) mediation. The FCS mediator will usually meet with both parties with a goal of reaching agreements on a parenting plan for the children that can be drafted into an agreement and sent to the judge for execution as a court order. If FCS mediation is 100% successful, and the parties reach an agreement on all issues, the custody portion of the case will be resolved (at least temporarily) pending a review process to ensure that everything is going well a few months down the road. If the parents cannot agree on everything, the mediator will issue “recommendations” to the court as to his or her opinion regarding what parenting plan is in the children’s best interests. These recommendations are more often than not going to be adopted by the judge as court orders, but either parent (or both) can object to the recommendations and request a long cause hearing (or trial) to allow him or her an opportunity to explain to the court why the recommendations are not good for the children. The important idea to note is that mediation must be given an opportunity to resolve the custody issues before a judge will get involved (unless an emergency arises that requires the court’s immediate attention).
As the children grow and develop, the parenting plan will need to be modified in all likelihood. FCS mediation can also help with that, if the parties are unable to reach agreements themselves. FCS mediation is free. But the court mediators are frequently stretched very thin, and do not have large amounts of time to spend with a family to resolve more complicated issues. FCS mediation is also not generally set up to handle high conflict cases involving complex facts. In such cases, a parent can ask the court for Private Child Custody Recommending Counseling (“Private Mediation”). The mediation process with a private mediator is similar to FCS mediation, and the goals are identical – to bring the parties to an agreement on the parenting plan. But Private Mediation is not limited in terms of the amount of time the mediator can spend with the parents. In fact, most cases will take several weeks of mediation to reach a resolution. Private mediation is thus a more in-depth process. It is also a more expensive option, as the mediators will charge the parents for their time. The private mediators, though, are mental health care professionals who generally only do custody work for divorcing or separating parents. When the future emotional and psychological needs of the children are at stake, an investment in a mediator who will spend the time necessary with the parents to generate the best parenting plan for the kids is often critical. As in FCS mediation, if the private mediator is not able to bring about a complete agreement, the mediator will issue recommendations to the court, which will likely be adopted subject to either parent’s right to a trial on the parenting plan issues.
In rare cases, the mediator may recommend an “evaluation” of the parents in order to determine with more certainty what dynamics between the parents may be in play that negatively affect the parenting plan for the children. Such evaluations are not common, and will ordinarily only take place in the most difficult custody battles. In most cases, mediation (either private or FCS) will resolve the custody issues, and may be revisited as the children grow older.