In any case involving children, the Family Court will expect the parents to attend custody mediation before it issues any substantive orders regarding the parenting plan. If the parties to the divorce action (or to the parentage action if the parties are not married) agree to a parenting plan without the need for mediation, the parties are free to put their agreements into written form and present them to the court for endorsement as orders. But if the child custody case is volatile from the beginning, involves issues related to Domestic Violence Temporary Restraining Orders, or a request to move out of the county, state, or county (to name only a few hotly contested child custody issues), custody mediation will be required before any orders issue.
The parents generally have a choice when it comes to the forum within which the mediation will take place. The courts will by default order the parents to attend Family Court Services mediation (“FCS”), presided over by a court-employed mediator. Because of the sheer volume of family law cases in any given county, and the lack of appropriate State funding to pay for mediation services, the FCS mediators tend to carry large caseloads and have limited time to handle any given case. The goal for the FCS mediator (as with any mediator) is to bring the parents to a complete agreement regarding the parenting plan. If they cannot get the parents to agree completely to a plan, the mediators in many counties will recommend what they believe to be in the children’s “best interests.” Some counties’ mediators will not issue a recommendation if the parents do not reach agreement (called “non-recommending” counties), and will merely refer the case back to the court for further hearing. But assuming that a recommendation issues, the court will very likely adopt that recommendation as the order of the court (perhaps with one or two minor changes), subject to either party’s right to call for an evidentiary hearing on whether the recommendations are in the children’s best interests. If FCS mediation does not go well in the short period of time allotted to the parties, the impact on the parenting plan (and on the children) can be huge. FCS mediation is free to the parties, and is likely best reserved for cases with only minor differences of opinion on the parenting schedule or other less critical issues.
Should FCS mediation not appear to be an appropriate option for a particular case, one or both of the parents may opt for Private Child Custody Recommending Counseling (“Private Mediation”). Private Mediation is done by a private sector Marriage & Family Therapist, child psychologist, or other qualified mental health care professional whose practice revolves primarily (if not solely) around Private Mediation clients. The parties could simply agree on that option and select the private mediator with whom they would like to work, then submit that agreement to the court. If the parties do not agree, either party can file a motion for a private mediator to be appointed. Private mediators do charge for their time, much like attorneys do, but if the issues are complicated or difficult, the money invested in private mediation is money well spent. The private mediators do not have the same limitations that FCS mediators do in terms of caseload and time commitment, so have the resources to fully investigate the issues involved in each case and arrive at agreements or recommendations that carefully consider all of those issues.
Given the importance to the lives of the children involved in the case, and the potential impact to the children years down the road, the Private Mediation option is what my office most often recommends. And because the mediation process is so important to the eventual outcome in the custody case, my office can fully prepare any client for FCS or Private Mediation in advance of the first mediation appointment to ensure that the client understands what mediation is, how to approach each issue in the case, and generally normalize the client’s expectations regarding this important and potentially life altering process.