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November 18, 2021 Custody

12 Tips for a Successful and Efficient Custody Mediation

By: Andy Wilson

Contested custody cases are among the most difficult types of cases to settle, and if you are reading this as a family law judge, practitioner or helping professional, you probably agree with me.  The “best interests of the child” standard applicable across much of the United States gives the judiciary a large amount of discretion to weigh the difficult (mental health issues, abuse) with the relatively mundane (a parent’s claim that a three-year-old child should have a preference in whose home they sleep at night, or who gets Halloween this year), which creates a litany of issues for clients about which they wish to be heard.  There is often nothing more emotional for a parent contesting custody in litigation, particularly when there is a real or perceived financial imbalance between the parties which often exacerbates child-related issues.  

There is often nothing more emotional for a parent contesting custody in litigation.

There is often nothing more emotional for a parent contesting custody in litigation.

Credit: Josh Willink via Pexels

In jurisdictions where mediation is mandatory or even just encouraged – or even when you are preparing for a contested hearing on custody - preparing your client can help minimize the emotional impact of learning what the other parent’s positions are on significant and insignificant issues. Here are 12 quick tips to help your clients try to take the emotion out of an emotional conversation so your mediation or hearing presentation can be efficient and, more importantly, successful. 

  1. Upon being retained, provide your client with a sample parenting plan form.  I live in Florida, and our Supreme Court has made available to the public a slew of forms for use in family law cases, including long-distance, safety-focused, and standard parenting plans.  Depending on what your case involves, providing a sample to your client in advance can help them begin to conceptualize what life is like with a child living in two homes instead of one.  If your jurisdiction doesn’t have sample forms, take the time to create one using a template from a case where your plan was accepted into evidence or ratified by a court.  Don’t forget to remove all identifying information before sending!
  2. Provide your client with a blank calendar for the next twelve (12) months following being retained to enable them to visualize what a parenting plan looks like.  Ask them to mark on it all special events unique to their family – religious celebrations, birthday milestones, out-of-town travel, etc.  Have them use one color for Parent 1 and a different for Parent 2.  This will show them how much time they have and how many transitions your child may have between parents – particularly for parents who request more frequent timesharing rather than longer blocks.  It may be that seeing on paper that baby Andy has to be driven to the other parent six times in a week might not be the best plan and may help steer the client to a more reasonable timesharing proposal. 
  3. If you really want to go above and beyond, have the client fill this out for two years.  This way, for holidays that are alternated annually (i.e. Parent 1 has Thanksgiving in even years, Parent 2 has Thanksgiving in odd years), parents can see if their proposed schedule fits in with their family traditions.  In parenting plans where most holidays are assigned to parents based on even or odd years, some parents end up with the bulk of the holidays one year and very few the next year.  Your client would want to see this on paper to avoid being ‘blindsided’ when a fair and equal concept does not mesh with their perception of equality.
  4. Plan ahead for calendar conflicts.  Ask your client about the dates of both parents’ birthdays and the child’s birthday.  It’s easy for the client to say that they want the child on their birthday – but what if mom’s birthday occasionally falls on Father’s Day – then who prevails?  If your client celebrates Easter and has Easter weekend every year, what do you do when the school spring break also includes Easter weekend and the other parent has the child for spring break?  Plotting those conflicts out is well-worth the time to avoid the upset client who call moments before the office closes the day before a holiday demanding a resolution in court – not that this has ever happened to any of us!  
  5. Have a conversation with your client about holidays and special occasions.  Meditation or in direct examination is not the time to learn for the first time that your client will never be happy unless they wake up every single Christmas morning with their child.  Find out what their priorities are – if they insist on Christmas morning every year, are they comfortable giving the other parent Christmas Eve and Christmas Day lunch/dinner? Before the relationship deteriorated, what were the family traditions?  Was Labor Day always spent with Parent 1’s family and Memorial Day always spent with Parent 2?  Does your client have a large family reunion each summer that needs to be included in a parenting plan?  If your client is not religious or observant, would they mind giving the other parent the majority of religious holidays in exchange for time elsewhere?  Does their family travel out of town for holidays and how often?  Perhaps there is a logical reason why the parent who demands every Christmas morning wants it that way – and having the conversation in advance can help you as a practitioner vet whether your client is reasonable and whether they would make a good witness should you need to proceed to trial.
  6. Talk to your client about future planning.  Do they plan to have their child attend religious training needed to obtain a confirmation or bat mitzvah?  Do they plan to have their child attend sleepaway camp?  What about trips abroad as part of summer programs with school or “teen tours?”  Will they want their child to have a car when they turn 16?  Who pays for driving school?  What if your child wants earrings, piercings, or cosmetic surgery?  Not every parenting plan needs that level of detail; however, for clients of young children or parents focused on the “now” instead of years down the road, painting the bigger picture can help avoid enforcement or modification litigation when, as parents are wont to do, issues arise and the only person who can get them what they want is you.  Moreover, for parents who say that “we can figure it out” – implore the importance of detail as a safety net in case the relationship goes south.
  7. Make clear expectations about the time and place of exchanges and consider school pickup and/or drop-off wherever possible, particularly in high conflict cases where parents are more likely to expose the child to conflict when the parents are in the same place.  Remember that even when conflict is low, it can be hard on children to say goodbye to either parent, particularly when the other parent is watching.
  8. Prepare your mediator in advance.  Prior to every mediation, I draft a confidential letter to the mediator (protected under our jurisdiction’s mediation privilege so that it is not disclosed to my opposing counsel) briefly introducing the clients, outlining the procedural status of the case, providing a short narrative of relevant family history pertinent to the issues at mediation, and detailing the client’s positions on the issues to be addressed at mediation.  Whether your client is laid back, irrational, or somewhere in between, giving the mediator a “heads up” about personalities, relationship dynamics, and litigation priorities will help streamline the mediation as opposed to “going in cold.”  If you represent a particularly difficult or unreasonable client, consider scheduling a pre-mediation call with the mediator to warn them about what they are going to face to best prepare the mediator to be able to successfully mediate the custody issues in your case.  If you are not using mediation, consider asking (and paying) a trusted colleague to hear from your client about their wishes as though they were a judge, and have them deliver a “reality check” about likely outcomes in court. 
  9. Prepare the documents that you hope to be signed at mediation or ratified by the court in advance.  Once your client has filled out your sample parenting plan, take that and turn it into a more comprehensive document.  Be clear with the client, though, that this document is subject to change as the mediation (and litigation) progresses.   
  10. Consider including a clause that the parties agree to be bound to agreements made between them in writing (ex. swapping weekends) as though they were court-ordered, to prepare both parties to play fairly and honestly with each other in the future.
  11. Remember the old adage – what’s good for the goose is good for the gander.  Or what’s good for the goose is good for the other goose.  Or what’s good for the gander is good for the other gander.  Whatever the case may be – it applies!
  12. Lastly, remember to impress upon your clients – particularly the difficult ones – that creating a parenting plan is about building a life for the child just as much as it is creating rules, boundaries, and guidelines for co-parents.   Most children do not care which parent they see on Labor Day or Valentine’s Day – they simply want to be with a parent who makes them feel loved and supported.  Refocus your client as often as you need to, reminding them that “what is going to make little Andy happiest” is far more important to their child’s healthy development than getting a “win” over the other parent. 
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Andy Wilson

Esq., Fort Lauderdale, FL

Young, Berman, Karpf & Karpf, P.A.   
ABA Section of Family Law Custody Committee Chair