This final installment in our Alternative Dispute Resolution series will discuss ADR in child custody matters.
Child custody is often the most contested and emotional area of a divorce. It is also the area that most experts find the most important to do in a non-adversarial manner. Children can be traumatized by time-consuming and adversarial proceedings. As such, ADR, especially mediation, can greatly improve the impact a child custody dispute can have on a child.
Indeed, most experts in family law agree that the experience of the children is the most important to consider, and that whatever can be done to prevent instability and fighting in the life of the child should be done. Thus, ADR is important in child custody proceedings since it allows families to create a more stable home environment and to hopefully move towards a harmonious and collaborative parenting future.
If an SENE (as described in previous post) fails to bring settlement between the parties, mediation or a full custody evaluation may be necessary. Mediation is often the preferred alternative, as it offers the parties the opportunity to work together. But, if that does not work for these parties, they can look to a custody evaluation.
Custody evaluations tend to be time-consuming and therefore the more expensive option for the parties. They also tend to feel slightly more adversarial, because they involve a custody evaluator interviewing and observing both parents to ascertain what is likely in the best interests of the child. Once this evaluation is made, it is filed with the court. While the parties may also use this outcome to help in settlement negotiations, it is important to note that should they go to trial, the court has the evaluation, and it is usually given a great deal of deference by the judge to assist them in making a determination.
Post-decree, should issues arise in enforcing a parenting time agreement, the court may appoint a parenting time expeditor or parenting consultant. Parenting consultants are neutral professionals with experience with divorce and parenting issues. They will meet with the parties and attempt to mediate any parenting disputes. Should mediation not work, parenting consultants act in a mediator-arbitrator type role, and may make the final decision for the parties. If need be, parenting consultants can file binding decisions with the court. They can be utilized just once or continuously, as needed to end disputes between the parents. Yet, since they are paid hourly, parenting consultants are an expensive solution to every day disputes. Most parties use them only in alternative to going back to court.
But, when kids are involved, any alternative to a full-fledged trial is usually less traumatic for all involved, most especially the children.