What is Child Custody Mediation?

Divorce is an inherently painful process that can be all the more challenging when children are involved. Fighting over child custody issues in court can intensify the pain for all those involved—not to mention the expense.

Fortunately, disagreeing couples can get help working toward solutions for their family somewhere other than court. Child custody mediation exists precisely so that parents who just can't seem to agree don't have to take on the financial and emotional costs of court battles.

Mediation is a method of "alternative dispute resolution" (ADR) that has become a mainstay in the world of divorce. When it comes to child custody, mediation is designed to allow divorcing or unmarried parents to reach an agreement on legal and physical custody of their children without the pain and expense of a traditional court contest.

In a mediation session, spouses meet with a trained mediator, usually in an informal setting (such as the mediator's office), or sometimes online. Think of the mediator as a guide, navigating the couple through the maze of marital issues they disagree on. (Sometimes the spouses work with a mediator and otherwise handle the case themselves; other times they each have an attorney who guides them through the mediation process.)

Unlike a judge or arbitrator, the mediator doesn't make decisions on the disputed matters. Rather, mediators use their knowledge and skill to try to facilitate a compromise that both spouses can live with. In divorce cases, a successful mediation will normally lead to the preparation of a written settlement agreement.

Child Custody Overview

Child custody isn't the all-or-nothing proposition it's often thought to be—one parent gets the kids, the other doesn't, end of story. It's well established that children fare better when both parents are an integral part of their life, and that's the goal the courts strive for in custody cases.

At its core, child custody includes two basic concepts: legal custody and physical custody. Legal custody relates to who will make the decisions regarding the important matters in a child's life, such as education, religious upbringing, and nonemergency medical treatment. With the exception of a parent being unqualified for some reason, courts prefer to have parents share legal custody.

Physical custody has to do with where a child will primarily reside. To a large degree, determining physical custody depends on where each parent lives, with the aim being to provide for an arrangement that best suits the child's needs.

In all custody matters, doing what's in the child's best interest is the court's guiding principle.

Child Custody Mediation Basics

Although many issues in a divorce can be contentious, child custody and parenting time are often the most emotionally charged and difficult for families to agree on. Child custody mediation is intended to help tone down the hostility, for the sake of both the parents and their children.

Court-Ordered vs. Private Child Custody Mediation

Child custody mediation can be either private, where the parents voluntarily participate in the process, or ordered by a court. The law in a state will determine whether and when parents go to court-ordered mediation.

Court-ordered mediation is often free. But private mediation allows the parents to have more say in the process and tends to be more successful. Despite the upfront cost, private mediation can actually save the parents a lot of money because of the court costs and lawyers' fees that come when there's no agreement.

Child custody mediation is also typically more cost-effective than going to court, because you're paying a mediator to help you come to an agreement, rather than asking your attorneys to battle it out in court with both charging you an hourly fee to do so. And, you have a say in when the sessions will take place. That's a luxury that is practically nonexistent in the court system.

Divorce laws in most (if not all) states mandate custody mediation once the divorce process has begun if the parents can't come up with a parenting plan on their own. So even when couples who can't agree haven't opted to pursue mediation before filing for divorce, it's virtually certain they'll be ordered to participate at some point. In light of this, it's important to learn how to approach mediation.