Custody Disputes

Custody disputes may occur whenever a couple who has joint children decides to separate and divorce. Who gets the responsibility to care for the children and what rights and responsibilities each spouse has after the divorce has gone through is one of the most challenging sets of decisions any divorcing couple has to deal with, in addition to making decisions about the division of jointly owned property.

Unless the two spouses can agree on custody without legal help or the Family Law court, they may have to opt for custody mediation, arbitration, or accept the decision the court makes.

What is a Custody Dispute?

Child custody decisions must be made whenever a couple separates through divorce or the dissolution of a civil partnership. Even if the couple comes to a joint agreement themselves about child custody, the Family Law court may still want to see how the arrangements will work in the best interests of the children before agreeing to a divorce.

When the couple cannot come to a joint agreement about how their joint children will be cared for, there may be a custody dispute which cannot be resolved without outside help.

Child custody decisions involve the following.

• Which parent will provide day to day care of the welfare of the children, i.e. provide a home for them, make sure they are fed properly, clothed, that they attend school and ensure they are healthy. This component of child custody is known as physical custody.
• What responsibilities each parent will have to make major decisions about the children’s welfare. This includes influence over their education, health, moral upbringing and in some cases, religious influence. This component of child custody is known as legal custody.
• What rights the other parent will have to retain an ongoing relationship with the children if he/she is not going to be the primary caregiver. This means what visitation rights they will have, how vacations and weekends are organized for the non primary caregiver parent.
• The arrangements made to support the children financially, i.e. the level of child support, especially if there is only one main primary caregiver and the other parent has.
• The arrangements that must be made if one parent decides to move far away from the other parent, e.g. to another state or to another country.

A child custody dispute may be resolved with the help of a family law attorney or attorneys, custody mediation or custody arbitration. In the event that mediation does not work, the couple can opt for arbitration or to request that the family law court makes a decision for them. There are pros and cons of each settlement mechanism chosen.

In some cases, when a couple really has major disagreements about an impending divorce, the dispute may escalate into a custody battle. In this situation, each parent may hire a different attorney to argue their position.

Mediation in Custody Disputes

Mediation is often the first step that a couple can take if they cannot agree on how to provide ongoing care for their children, i.e. they have a child custody dispute. Mediation is a commonly used alternative dispute resolution (ADR) process used not just with child custody disputes. There are divorce help agencies that can suggest how to go about mediation, or this can be arranged by an attorney, especially if the couple still cannot agree about child custody arrangements despite an attempt at settlement by the couple’s attorney(s).

Opting for private mediation is a lot cheaper and less emotionally traumatic than resorting to the court to make a decision or to fight each other in court when it comes to a custody battle. Mediation may still be ordered by the court, even if the couple has decided not to opt for private mediation.

Mediation is a less formal way that can be tried than resorting to arbitration or the court. An experienced and trained mediator is used who does not make any binding decision about the children’s welfare. The role of the mediator is to listen to each parent, either individually or jointly and guide them through the complexities of the decisions that must be made about their children and in particular work through the parts of the custody process where there are disagreements.

Mediators may invite the parents to the mediator’s office, or may organize online video sessions with the parents. The most successful mediation sessions involve both parents meeting with the mediator together, but there may be genuine reasons why this may be impractical or impossible, e.g. when one of the parents has been accused of domestic violence or abuse towards the other parent or even the children.

The aim of mediation is to finally come to some kind of compromise which will work in the best interests of the children, even if one or both parents are not entirely happy about the arrangements. Once an agreement has been made, this will become part of a more formal settlement statement which the parents will be expected to sign and they can use to support the petition for divorce or a separation agreement.

What is Custody Arbitration?

Custody arbitration is often recommended if mediation has failed. Arbitration is another form of alternative dispute resolution (ADR). Arbitration avoids the expense and potentially negative emotional effect of a long drawn out court battle. The arbiter chosen is normally done so by mutual agreement by the two parents. The arbiter may be a retired judge, or a family law attorney or someone else with the experience and authority to make decisions about child custody arrangements.

Arbitration involves the arbitrator listening to and questioning the parents about their disagreements, interviewing children, hearing testimony from others close to the family, issuing subpoenas and finally making a decision. This decision must be approved by a court, but once it has done so, it cannot be appealed by the parents, like a purely court made decision. The advantage of using an arbitrator, though, is that it is generally faster, less expensive and more private than going to court.

Navigating the Custody Battle

The Family Law court is used when all other processes have failed and the two parents cannot agree on major decisions that have to be made about their children following separation and divorce. The court may make decisions about child custody as part of a disputed divorce, so there may be other decisions which are disputed as well as child custody decisions.

Once the court has been asked to make decisions on behalf of the two parents, the parents must understand that the court’s decision has to be followed. Failure by one parent or the other to abide by the court’s decision about child custody could lead to penalties such as fines or other more severe penalties such as a charge of contempt of court.

The court process will normally involve a hearing or series of hearings before a judge in which the parents are expected to make their points and differences heard. Family law attorneys hired by each parent may attend to represent their clients. The judge will review the options based on the best interests of the child and make a final decision concerning who gets to be the primary caregiver, what rights the non primary caregiver will have, if any, child support payments and contributions and any other decisions which will influence the child’s welfare.

What is Meant by the Principle of ‘In the Best Interests of the Child?’

Family law courts use the principle of the ‘best interests of the child or children’ when it comes to making a decision about child custody. Basically, the child’s welfare, health and happiness is regarded as more important than the interests of either individual parent. The judge will interview the parents and will review as much information as possible before making any court ordered child custody decision.

Each state has different standards concerning what judges may consider factors that can be used to make a decision ‘in the child’s best interests’. These include:

• the emotional relationship the child has with both parents and to other siblings in the family;
• whether there is any history of child abuse or violence by either parent;
• the psychological, moral and financial ability of either parent to provide a safe and healthy home environment for the child;

Protecting a Child’s Well Being

Child custody disputes and in particular long drawn out custody battles are not only emotionally and psychologically draining for the parents but are likely to have a serious negative effect on the children as well. The dependent child’s well-being should be kept firmly in mind when decisions about how to resolve a child custody dispute are made. This is why alternative dispute resolution methods such as mediation and arbitration are a popular and preferred method than having the dispute decided by a court appearance.

Get Help With a Custody Dispute

Child custody decisions are often very difficult to make without legal help. A family law attorney can help a separating couple make important decisions about their children themselves or use mediation or arbitration to resolve the dispute. Fill out the Free Case Evaluation to get connected with a participating, independent Family Law attorney who subscribes to the website who may be able to help with your case.