MEDIATION STRATEGIES FOR RESOLVING
THE CHILD CUSTODY CASE
Presented by Robert Gradel
HIGHLAND LAKES MEDIATORS
MARCH 10, 2004

Problems confronting the mediator in child custody disputes.

There are a number of difficult problems confronting the mediator when attempting to resolve child custody disputes. The parties are under tremendous psychological pressure at mediation. On the list of the most difficult and stressful periods during a person's life, death and divorce are at the very top. Dad comes into the mediation thinking that the judges and juries are all biased against men, and mom comes into the mediation thinking that good mothers always wind up with custody of the children, and if she is not the primary custodian, everyone (including herself) will believe she must have done something really bad to "lose" custody of the kids. Another problem often confronting the mediator is that one or both of the parties are there simply to have their "ticket punched" prior to trial, and may be working against you. For example, the lawyer may have been paid a large sum of money to try the case. If the case settles at mediation, the client may want to discuss a refund of the retainer. Another problem is lawyer and client ignorance concerning the actual day to day difference between winning and losing, sole managing conservatorship and joint managing conservatorship and the rights and duties of the parties post divorce. Don't be surprised to find that the client's lawyer is uncooperative, spouting nonsense like "everyone is entitled to their day in court" or "I don't want to discuss my trial strategy" when the mediator attempts to discuss the problems and possible solutions. Sometimes the mediator can engage the client one on one in the discussions, circumventing and/or educating the attorney in the process. Occasionally the lawyers will slip up and allow the mediator to speak to the parties alone without the attorneys being present. An alert mediator can take advantage of this opportunity to make progress without the client looking for guidance for every decision from their lawyer. Other obstacles to settlement include job schedule and distance between the parties. It is more difficult to co-parent if one spouse is planning to move to Alaska. Lack of financial resources of one or both of the parties will eliminate many creative solutions. CPS involvement, psychological reports and other "bad facts" evidence can shorten the mediation dramatically.

How does the mediator get started?

A glance at the Family Code provides some pretty good talking points the mediator can use when the mediation begins:

The public policy of this state is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. Tex. Fam. Code 153.001(a)(1).

The guidelines in the standard possession order constitute a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the exclusive right to designate the primary residence of the child in a suit. Fam. Code §153.137.

There is a rebuttable presumption that the standard possession order provides reasonable minimum possession of a child for a parent named as a possessory conservator and is in the best interest of the child. Tex. Fam. Code §153.252.

It is preferable for all children in a family to be together during periods of possession. Tex. Fam. Code §153.251(c).

The Court may enter an order that varies or deviates from the standard order when the parties agree to the deviation. Tex. Fam. Code §153.255.

If the Texas Standard Possession Order (SPO) is inappropriate, the court is ordered by the Code to modify the possession order and may consider:

1. the age, developmental status, circumstances, needs, and best interest of the child;
2. the circumstances of the managing conservator and of the parent named as a possessory; and
3. any other relevant factor. Tex. Fam. Code §153.256.

Another tool at the mediator's disposal has been the change from Wednesday overnight to Thursday overnight in the SPO. If the non-custodial parent elects the alternative possession times, this will allow the non-custodial parent and the children five days in a row every first, third and fifth weekend during the school year. (Don't forget, weekends always begin on Fridays and not the previous Thursday overnight.)

Practical suggestions.

The beauty of a mediation, as we all know, is that the parties can tailor the order to fit their particular circumstances. Prepare a calendar prior to mediation showing the SPO visitation. I have heard it said that if you take the SPO and calculate the time the non-custodial parent has with the children, it is about 38% of the time. The parties are essentially arguing over 12% of the child's time. I have not gone to the trouble to count each hour to verify that fact, but I have counted every day during the year each parent would have contact with their children under the SPO. During a twelve month period, dad will get to see the children for 192 days out of the year, with mom having contact on 278 days. I have included in this article a March and April 2004 calendar for a typical family in which the father is the non-custodial parent. There are 12 days in which Dad does not have contact with the child, and 11 days in which Mom has no contact with the child. For April 2004, there are only 14 days in the month in which Dad does not have contact with the child. Dad arguably gets the most "quality" time (weekends and holidays) in which he and the kids can plan excursions, whereas mom has the time that will necessarily involve barking at the kids to get their homework done and getting ready for school in the morning.

Another idea to consider at mediation is to negotiate a requirement that the children reside within a specific school district. This allows the non-custodial parent to exercise the alternative possession times, and will allow greater flexibility in writing a workable order. Sometimes the parties will agree to omit a finding that either parent has the exclusive right to establish the residence of the child. If the parties agree to a split custody arrangement, this may cinch the deal by removing evidence of the actual "winner."

I know it sounds cynical, but sometimes money will help bridge the gap in custody litigation. You may be able to help the parties settle by preying on their misunderstanding about how much an income tax deduction is actually worth. In 2004, the exemption for a child is $3,100.00. If mom has a low paying job making less than $14,000.00 per year, she is in the 10% tax bracket, meaning the deduction is worth $310.00 per year to her. This is not much to give up to avoid a child custody jury trial. If dad is in the 28% tax bracket, the deduction means $868.00 to him. Many non-custodial parents think that their child support goes for whiskey, dope, car payments and fast food. Modifying the monthly child support or other financial concessions may settle the case.

Is it Crazy to Involve the Children in the Mediation?

Including the children in the mediation process may help the parties focus on the harm the litigation is doing to them. Mediation is confidential, so what the children say cannot be used in court. This could result in more emphasis on parenting, and less focus on crushing the other parent in court. You must be very careful that you do not harm the child during this process by changing the focus from what is best for them to forcing the child into temporarily siding with one parent. However, in the right circumstances, you may want to consider suspending the mediation and resuming with the child and/or the child's therapist joining in the discussions.

Suggested alternative possession orders.

Is one parent an airline employee, in law enforcement, fire fighter or other job working non-standard hours? Does either side have a significant amount of free time to take the kids to ball games and such? If so, modifying the SPO to fit the parties situation could seal the deal.

Here are some ideas for possession orders that are alternatives to SPO visitation:

1. Split custody - Alternating months
1. Child spends January, March, May, July, September, November with one parent, then February, April, June, August, October and December with the other. SPO visitation with the non-custodial parent.
2. Split custody - 2-2-5-5
1. Begin with Monday, Tuesday for Mom, then, Wednesday, Thursday for Dad, then Fri, Sat, Sun, Mon, Tues for Mom, then Wed, Thurs, Fri, Sat, Sun for Dad. Then start over.
3. Split custody - alternating years
1. Non-custodial parent gets SPO visitation while the custodial parent has primary.
4. Split custody - Alternating weeks
1. Friday to Friday at 6:00 p.m., SPO visitation for holidays, each party may designate one weekend in the summer for their vacation period (thus giving the parent 10 consecutive days with the children).
5. Split custody - split year
1. Each parent has custody for six months, with SPO visitation for the non-custodial parent. This will generally work best for kids under 5.
6. Split custody - One parent has school year, the other parent the summer.
1. If mom raises children during the school year, dad will have SPO visitation during that period. Mom will have one 7 day period during dad's 3 month summer period, with notice by April 1.

Examples of Possession Calendars (open in separate browser windows):
February
March

I have included a modified split custody order. (Click here to continue)