Child custody represents one of the most legally complex and emotionally challenging aspects of divorce, legal separation and paternity proceedings, according to the American Bar Association Section of Family Law. Statutes express a preference for parents attempting to negotiate a settlement of child custody disputes when possible. If not able to reach a decision between themselves, parents can pursue mediation or a court hearing during divorce and other types of proceedings.
Mediation Function
The function of mediation is to allow parents to utilize the services of a professional to assist in resolving child custody issues. A mediator does not make decisions for the couple or issue an order regarding child custody issues, according to "Child Custody A to Z" by Guy J. White. Rather, the mediator assists parents in reaching a negotiated settlement through discussion and compromise.
Court Hearing Function
The function of a court hearing is to submit outstanding issues to a judge for determination and resolution. Both parents present their positions to the court regarding child custody. The court considers the evidence and arguments presented by the parties, then the judge renders a decision in the form of a child custody order.
Time Frame
Mediation can occur at any time during a divorce, legal separation or paternity case. In other words, the parties to such a case can access mediation early on during proceedings or as a trial draws near, depending on their objectives and needs.
A hearing on child custody issues typically is considered a last resort when all other attempts at reaching an agreement fail. As a result, a hearing on child custody issues typically takes place towards the end of divorce, legal separation or paternity proceedings.
Considerations
Mediation provides parents more leeway to make their own decisions regarding their children. Although a third party is involved in the process, the ultimate decision regarding child custody is made by the parents themselves. On the other hand, when pursuing a court hearing on child custody matters, parents lose their decision-making abilities. The court issues an order determining the child custody arrangement in the case.
Warning
Keep in mind that whether by negotiation or court order, a child custody decision is difficult to alter without future agreement by the parents. In other words, unless the parents agree to a change at a future date, a party seeking to change custody must demonstrate what is called a material change of circumstances, according to Cornell University Law School. What this means is that the situation surrounding the custodial arrangement altered to such a degree that the welfare of the child is at risk without a change of custody.
Expert Assistance
Availing yourself of mediation or a court hearing does not mean that you shouldn't consider retaining an attorney to represent you in a child custody matter. Due to the nature of child custody law and court proceedings, your rights and interests likely will best be protected by retaining an attorney. The American Bar Association maintains a directory of local and state bar associations across the country through which you can access directories of attorneys who practice family law in your state and community (see Resources).
References
- "Child Custody A to Z"; Guy J. White; 2005
- Cornell University Law School: Child Custody Overview
- American Bar Association: Section of Family Law
