But What if We Can't Agree? 6 Ways To Resolve Legal Custody Issues

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By Rebecca A. Myers, Esquire, Guest Author - September 16, 2016

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In light of the fact that the vast majority of parents share the right to make major decisions with regards to their children, it is not uncommon for disputes to arise between them as to what is in the best interest of their child. 

There are several ways you can go about trying to resolve custody disputes with your ex:

1. Litigation: Right, wrong, or other, a traditional way to “resolve” these disputes has been to run to court. In Allegheny County, where I practice, there is at least one judge hearing motions pretty much every day of the week—sometimes as many as three. A lot of what fills their dockets is people coming to court because they have not been able to make a decision regarding the upbringing of their child.

To the extent that anyone may be harboring delusions to the contrary, let me be clear: The judge does not care about your child’s soccer participation. They don’t care if they play, they don’t care where they play, and they don’t care how well they play. To the extent that you are paying an attorney hundreds of dollars per hour to go to court to try to convince the judge to care about those things, you are wasting your money.

Does this stop people from going to court about these issues? No, not at all. It is probably half of what the judges have to endure each day they hear motions. However, the court does not wish to micromanage the raising of your children or any of the other legal issues that may arise in the course of your uncoupling. I, therefore, advise people to look into some of the alternatives below.

2. Mediation: As I discussed in a prior post, in mediation each of the parties appear together with the mediator to try to work through issues that they have not been able to resolve between themselves. The focus of mediation can be as broad as all support, asset division and custody issues arising in a divorce, or it can be about an isolated issue, like where a child should go to school. A mediator helps guide the parties to a mutually agreed upon resolution and largely serves to help facilitate a dialogue between the parties to reach an understanding and compromise. What happens in mediation is not, however, binding between the parties and they will need to have a formal agreement drafted by attorneys to confirm any arrangements to which they agree.

3. Collaborative Law: In a collaborative divorce, each of the parties hires a collaborative attorney and agrees that they will not pursue litigation at any point in time—otherwise they must remove themselves from the collaborative process and find new counsel. Depending upon the nature of the dispute between the parties, they may require the assistance of a collaborative coach to help facilitate their conversations and ultimate resolution.

They may also employ a child specialist to provide input from the children involved or a financial expert if matters relative to money are in play. Again, the topics addressed can be quite broad, involving a wide range of issues attendant to uncoupling or more specific discrete issues like custody disputes. At the end of a collaborative process, with the assistance of their collaborative attorneys, parties will enter into a finalized agreement with regards to their collaborative agreement.

4. Co-parenting Counseling: Sometimes, if the parties are having difficulty reaching agreements with one another or being able to share in their co-parenting responsibilities, the court may refer them to co-parenting counseling. In this arena, the parties work through a therapeutic process with a counselor who has a focus on assisting them in improving their relationship with one another as they go about raising their child together.

This can be very helpful for people just starting the uncoupling process, as many of these counselors provide insight to the parties’ communication style and where they have difficulty hearing each other and voicing concerns. Parties can be ordered by the court to co-parent counseling and this will often happen if you show up too many times asking the court to micromanage how you are raising your child.

5. Co-parenting Coordination: This was all the rage a few years ago. Parties who exhibited extreme difficulty in working through their co-parenting issues would be sent to a parenting coordinator, who would hear their minor custody disputes. (Usually, this happened after parties tried to use the litigation route too often.) The co-parenting coordinator would have the authority to order the parties to do certain things. The parenting coordinator, in essence, acted like a mini-judge that would hear smaller disputes with regards to activities, exchange times, etc., but could not make major changes to the physical custody schedule or the parties’ legal custody arrangement.

However, co-parenting coordination has fallen out of favor with the courts, and judges can no longer order parties to participate in the process. However, there is no prohibition on the parties jointly agreeing to enter into co-parenting coordination together and agreeing to be bound by what decisions the co-parenting coordinator might make if the parties are unable to reach an agreement. Similar to going to court, co-parenting coordination was more an avenue of last resort than a first choice, as needing a third party, be it a judge or a coordinator, to make decisions for you is an indication that there are significant communication problems between the parties.

6. The final and probably the best answer to all this is simply talking to each other. While you may need to speak with an attorney to hear what your rights are or speak with a counselor to understand better how your relationship with your co-parent affects you, the most cost effective, long term, and relatively simple answer is to figure out how to work with each other. Maybe you are better if you only communicate via emails, maybe it’s better if you only communicate via telephone, maybe you should try to minimize your communication as much as you can, but the bottom line here is you have to learn how to communicate with each other and the sooner you can get yourselves to a point where you don’t need third parties to help you do that, the better off you probably are.

As always, if you found this post helpful, please share and feel free to comment with questions or suggestions for future posts.

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