Mediation vs. Court for Child Custody

Many American families are affected by custody battles.

When a relationship involving children ends, several factors are taken into consideration to determine which parent the child will live with most often. In a perfect world, the best interest of the child will be considered by both parents, everyone will be cooperative and no harm will be suffered by the children. Unfortunately, a bitter and nasty divorce can often lead to an even nastier child custody battle. Sometimes, court hearings and trials are all but iminent in determing child custody. Other times, differences can be resolved and decisions can be made through mediation. Circumstances surrounding the custody issues will help decide which method is best.

Mediation in Child Custody

Mediation is often used in child custody proceedings in an attempt to avoid going to trial. In some states, mediation to try and resolve issues is mandatory before a trial can be set or before cases are heard before a judge. Mediation proceedings offer both parties the opportunity to resolve lingering custody issues such as who should get custody, visitation and parenting time and how the children should be disciplined.

Mediation usually does not involve attorneys. There is an impartial party present in the mediation called a mediator. That individual's job is to ensure that both parties focus solely on the issues at hand. They ask questions and try to help the parties come to a solution.

Courts in Child Custody

If parents are unable to come to a resolution regarding custody on their own, they will have to go to family court where a judge will make the custody and visitation decisions. Parties are generally represented by an attorney. In family court proceedings, spouses are sworn in and allowed to testify. In the case of child custody, each spouse is allowed to offer reasons why the child should remain with them. Witnesses may be heard in family court and documents and other records are often allowed as evidence if it will help the judge with his final custody decision.

Key Differences

Court is more combative than mediation. Mediation offers spouses the opportunity to find a common ground without the parties trying to undermine each other's integrity. Family court can give the party's attorneys the opportunity to cross-examine and challenge the testimony of the other party. Court proceedings can be drawn out for months or even years and lead to increased damage in the party's relationships and the relationships with their children. However, if the parties cannot agree during mediation, court is the only option in making a decision towards custody.

Types of Custody

There are different types of custody. Physical custody is often awarded to both parents and simply means that the parents have the right for the child to live with them. Legal custody is when a parent, or both parents, have the right to make decisions regarding the upbringing of the child including where they go to school, their religion and medical care. Sole custody is when only one parent has physical custody, legal custody or both. Joint custody means that both parents have shared custody of the child. Joint custody varies from joint legal, in which both parents make decisions in raising the child, or joint physical, in which the child spends a significant amount of time with both parents.

Custody Jurisdiction

Sometimes during a custody battle, one or both parents may move away from the state that originally handled the divorce. In this case, child custody jurisdiction must be established. Child custody jurisdiction determines which state's court will have the right to make decisions regarding custody of the child. Usually, the state that has jurisdiction is the state in which the child lived six months before the proceedings. Many other factors are considered when determining jurisdiction including whether one parent fled the state due to spousal or child abuse.

References

• Find Law: Child Custody Mediation FAQ
• Find Law: Types of Child Custody