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How to Avoid Court in Child Custody Cases

When it comes to your children, courts mainly address custody, visitation and child support in Divorce and Family Court cases.  But court is a huge financial and emotional stressor that could ruin your family even more, and your children will suffer immensely. Court should be avoided at all costs.  Here's the secret to winning  your custody case without going to court.

       To avoid court, use a mediation clause in the initial settlement to address disagreements regarding future child rearing. Below is a sample mediation clause giving parents the chance to first try to resolve their differences between themselves; and if they cannot agree then they use mediation or a Parent Coordinator:
- ORDERED that to insure that each parent continues to have informed and meaningful input in the decision making process prior to making any non-emergency non-day to day decisions relating to the welfare of the children, each parent shall timely notify and communicate to the other parent in writing setting forth the basis for the proposed determination and supplying such supplemental material as may have been considered in formulating the proposal.  The other parent shall be given a reasonable opportunity to respond, in writing, submitting comments and alternate proposals, including supplemental material for consideration. If the parents cannot agree on major, non-emergency issues, they will participate in mediation or the services of a Parenting Coordinator prior to filing any petition to the Court.


      Mediation has its advantages. It does not require attorneys. It saves legal fees.  Mediation is an expedient way to resolve problems in a day or two rather than engaging in a custody battle in court for years, in an overburdened court system unequipped to handle an overwhelming caseload.  To relieve that burden, the court will order a law guardian for the child and forensics of both parents.  That will be expensive and time consuming because the parents are ordered to pay half of those costs in addition to their legal fees.  Thousands of dollars can instantly be spent on legal fees and court costs that should be saved for the child’s well being, such as a college fund.  And worse, suddenly strangers such as law guardians and a forensics person or persons unrelated to the family or the child are involved in your personal life for what could be years.

       A law guardian is a lawyer who works for the court system and is usually as overwhelmed with cases as the courts.  The court can also order forensics , which is a court appointed social worker or psychologist to interview the parents, the child and can visit each parents’ home to investigate their living arrangements. Why would any parent want a stranger law guardian representing their child against the child’s own parents’ interests or a forensics person determining what is suitable for the child?  Finally, the child can be called in to the judge’s chambers. That involves removing your child from school for the day to have a closed meeting with a judge, escorted to court by a law guardian. The parents are not permitted to attend or escort the child to court.  Not only is it embarrassing for the child to explain to his friends he did not go to school that day because he had to go to court to meet a judge because his parents are battling, but just going to the court reinforces to the child that the parents are fighting. That is a very uncomfortable, unforgettable and unforgivable situation for the child.

       Empirical evidence verifies that custody litigation has a poisonous effect, emotionally and physically, upon children1.   I can take that a step further and personally verify the trauma suffered in custody disputes because I was the subject of a bitter custody battle in 1976 that went on for years.  Now, over thirty years later, I cannot forget how I was traumatized to witness my separated parents, sitting at other ends of a court with their own lawyers, ignoring each other while judges and strangers interrogated me about my own mother and father.  The best I can do from that experience is use that memory in the hundreds of custody cases I represented for over 22 years and continue to represent as a lawyer protecting children from having to experience court. Court is no place for a child, unless there is a real emergency.

1The Vulnerable Child, Richard Weissbourd, Addison-Wesley Publishing Company, 1996. Lost Boys, Why Our Sons Turn Violent and How We Can Save Them, James Carrabino, Ph.D., Free Press, 1999. The Violent Man, Single Men In Social Disorder From the Frontier to the Inner City, David T. Cartwright, Harvard University Press, 1996. Fatherless America, Confronting Our Most Urgent Social Problem, David Blankenhorn, Basic Books, 1995. Life Without Father, David Popenoe, Free Press, 1996. The Divorce Culture, Barbara DeFoe Whitehead, Alfred A. Knopf, 1997. Embattled Paradise, the American Family in the Age of Uncertainty, Arlene Skolnick, Basic Books, 1991. Haven In a Heartless World, the Family Besieged, Christopher Lasch, W.W. Norton & Company, 1977. Children First, Penelope Leach, Vintage Books, 1994. Mom's House, Dad's House, Making Shared Custody Work, Isolina Ricci, Ph.D., Collier Books, 1980. Surviving the Breakup, How Children and Parents Cope With Divorce, Judith S. Wallerstein, Jone Berlan Kelly, Basic Books, 1980. In the Best Interest of the Child, Beyond the Best Interest of the Child, Before the Best Interest of the Child, Goldstein, Freud, Solner, Free Press, 1986. The Paternal Imperative, David Guttman, The American Scholar; Winter 1998. When the Bough Breaks, the Cost of Neglecting Our Children, Sylvia Ann Hewlett, Harper Perennial Books, 1991. Divided Family, What Happens to Children When Parents Part, Frank F. Furstenberg, Jr., Andrew J. Cherlin, Harvard University Press, 1991. Real Boys, Rescuing Our Sons From the Myths of Boyhood, William Pollock, Ph.D., Henry Holt and Company, 1998. The Wonder of Boys, Michael Gurian, Putnam Books, 1997.

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