Child Custody and Visitation Alternative Dispute Resolution
When opening a custody visitation, child support or other case you will need to submit a “Domestic Case Information Report” along with your complaint, financial statement and other documents. The Domestic Case Information Report can be obtained at any clerks office of the court or on the Maryland Administrative Office of The Courts’ website at the following link. http://mdcourts.gov/courtforms/circuit/ccdcm001.pdf
After you file your forms, you will soon learn that The Maryland Administrative Office of the courts is now requiring all domestic cases undergo mediation or “alternative dispute resolution” unless abuse of a child or a party has been alleged. That’s why the civil case information sheet addresses mediation and “Alternative Dispute Resolution.”
The first section of the form is about alternative dispute resolution. Namely, it asks if your case is appropriate for
- a settlement conference
- Neutral Evaluation.
Now to start with, custody cases are ALMOST NEVER appropriate for arbitration. I don’t’ even know why arbitration is on the form as described. I have seen it, but it really is generally not the right tool for the job.
Arbitration can sometimes be helpful is to resolve something limited and black or white not so much the complete dispute between the parties. For example, narrowly defined issues like: what parent gets Christmas in a particular year? or should a parent be permitted to take a child on an out of state vacation over the objection of another? Those may be good issues for arbitration.
Arbitrators are a judge whom you hire to make a (usually binding) decision on the people involved. They are not to be confused with mediators who help people craft a mutual decision between themselves.
In contrast, custody and visitation cases ARE almost universally appropriate for mediation or settlement conferences and sometimes for neutral valuation (as may be necessary).
Mediation is when the parents meet with a qualified family law lawyer or other professional who can try to bridge gaps in their respective positions. This can be accomplished by the mediator explaining the benefits of co-parenting and by pointing out the pitfalls of various parenting positions.
As to Mediation, “just do it” as they say. I cannot count the number of people over the years who have protested mediation, attempted to get it waived, or have simply resisted it for reasons unknown to me. Don’t try to fight mediation process, it doesn’t work.
That is not to say that you won’t reach a mediation. You may, or you may not, but fighting the mediation process is like quicksand. The more you fight it, the more it hurts, and the more deep in trouble you will find yourself.
If you have a custody case, visitation case, modification case or virtually any domestic case in Maryland you’re going to be ordered to participate in mediation. Get used to it. There are three theories on the rise of mediation I ascribe in varying degrees to all of them
First, is the theory that Mediation is good for the kids. You will have a lifetime of challenges as a parent, single or divorced. If you can work through them and demonstrate respect, if not affection, for one another the children will have more self respect and become better people, more successful students etc.
Second, If you get a trial, it will last hours and culminates in your asking for a stranger to make decisions. That stranger, a judge, could not possibly appreciate and accommodate every nuance of your respective childrens lives and needs.
Third, Childhood is a living, dynamic and evolving process requiring the parents to react and adjust to changing needs of the child, their households,their physical, mental and emotional development. Court is static, after the fact, and inflexible. Progress takes months (if you are lucky) and even then it is often too little, too late.
In sum, anything that you can agree upon is a good thing for your kids.
Evaluation in my experience is not so much a means of alternative dispute resolution, as it is a means to the end of alternative dispute resolution.
Evaluation in the custody and visitation usually means a “custody evaluation.” That is where a third party who is usually an expert in child development evaluates the competing parents and households.
Evaluation can be through an evaluator employed by the court system, an appointee selected by court order or by private selection. While it can be discounted, expect it to cost several thousand dollars. More often than not the evaluator does not :”declare a winner.” So, don’t go into the expense with that expectation.
The Evaluator identifies problems and poses solutions regarding how the parents react to one another and to the child. Typical issues may include: scheduling issues for school and extracurricular activities, medical issues and therapy, homework and other challenges.
The evaluator will advise the parents of her findings when she/he is has completed the investigation. This will often guide the parents toward settlement and that is why I say it is a means to the end of a dispute resolution. If the parents don’t reach a resolution, the evaluator will submit the report to the judge for consideration in the final decision.
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