Even in a difficult custody case, the best way to get child custody without going to court is through mediation. It is likely to suit all involved better than a court judgment and all the stress and extra cost of time and money. Mediation is a way to settle disagreements outside the courts, or to get out of the court proceedings already started. However, reaching a mutually agreeable settlement can be challenging, and it requires both parties to be willing to work together and compromise.
Legal Process for Obtaining a Custody Agreement
Custody agreements can be reached by negotiation, mediation of different types or legal proceedings ending by agreement at any stage. A parenting plan or a consent order can be the outcome. A parenting plan is a written agreement outlining the terms of child arrangements. Consent orders are court-approved agreements with legal force as good as an order from a judge’s decision.
Usually, you are required to try to negotiate before court. Usually, you have to prove you have tried. Compulsory mediation and a “Genuine Steps” form are usually required. However, some exceptions such as urgency and domestic violence fear apply. Sometimes it was just too soon after separation and mediation failed in the turmoil.
If negotiation fails, parents may be required to go to court for a decision. The procedure in court for determining child custody involves the following steps:
- Filing an Application and receiving a response:
A parent files an Initiating Application with the court, setting out the parenting arrangements they seek, and serves the other parent with a copy of the application. The other then responds.
- Mediation:
Typically, the court will require the parents to participate in mediation to attempt to reach a settlement by agreement on custody. If they are able to do so, then they can file Consent Orders which puts an end to the court process and litigation.
- Pre-Hearing:
If the parents cannot reach an agreement through mediation, the parties will proceed to a pre-hearing, such as a directions hearing, to identify the disputed issues and attempt to narrow them.
- Interim Hearing or Final hearing:
If the matter proceeds to a hearing, each parent will present evidence and arguments to the judge, who will make a custody determination based on what is in the child’s best interests.
How to Reach a Custody Settlement Without Going to Court
A custody dispute can be one of the most emotionally draining and stressful experiences a person can endure. Mediation can be used to resolve custody disputes outside of the court system and to arrive at a custody arrangement that is beneficial for all parties, particularly the child.
However, reaching a resolution that is acceptable to both parties can be difficult and requires cooperation and compromise on both sides.
One of the most common issues we see is when parents are fixed in their positions and are not willing to accommodate the other parents schedule. So, to be successful at mediation be willing to compromise. Mediation entails negotiation and compromise, so while you may have to make a stand on some issues, on most issues be willing to make concessions and compromise to reach an agreement. This may involve being flexible regarding time-sharing arrangements or modifying the parenting plan to better meet the child’s requirements.
Be prepared.
Take the time to gather any documents or information that may prove beneficial during the session. This may consist of financial statements, school reports, medical records, and any other relevant information.
Know the consequences of settling and of not settling.
Compare the pleasure of being right and firm and strong with the pain of continuing down the path of court. A good family lawyer will tell you when to say a hard “No”, a firm “Yes” and when to say “maybe, let’s keep talking”.
Focus on the child’s best interests.
This should be the primary focus of any custody agreement. Try to maintain a focus on the child throughout the mediation process, and bear in mind that the objective is to create a plan that is in the child’s best interests, not the parents.
Effective communication is key to a successful mediation.
Listen to the other party’s concerns as well as articulating your own with clarity and courtesy. Patience in letting each side have their say and “getting it off their chest” seems to work. To keep communication going be receptive to hearing and considering the other side’s perspective, and attempt to find a solution that benefits both sides.
Consider your own child’s needs and be creative.
The best custody settlement may not be the same as your friend’s family or fit neatly into the traditional custody arrangements. Be open to considering creative solutions. We have seen it all in custody arrangements. If it is by agreement and all parents present a united front to children, it will usually work.
Legal Assistance helps.
In a perfect world, you can afford a lawyer for your advice at the mediation, and a professional mediator paid for equally too. A mediator can provide objective counsel and facilitate productive communication between you and the other party. It may seem strange, but it is often an advantage if the other party has a custody law lawyer too. This may be because if everyone is hearing the opinions of all lawyers and the mediator it is harder for one stubborn person to hold out and derail the process.
Get Custody issues right.
An experienced family law solicitor should be able to help settle custody disputes promptly between two reasonable parents. Whether reached through negotiation or litigation the end of a custody matter provides children with a constant environment in which to succeed after a separation or divorce. Unfortunately, not all parents act reasonably in the heat of separation. An experienced family lawyer will clear up the issues that must be settled, can be settled and those issues where you must take a stand. Give our team a call on (03) 9793 7888 or send us an email at admin@justfamilylaw.com.au if you would like to speak with one of our experienced family lawyers about your custody matter.