Developing a Parenting Plan with Domestic Relations Services

Your case may be assigned to Domestic Relations Services of the Court for assistance in developing a parenting plan. A worker will be assigned to your case and he or she will meet with both parents to attempt to mediate a final plan. The mediator’s role is to assist the parents in discussing the issues together in a polite and respectful way, and also to make sure that all of the necessary elements of a parenting plan are discussed. The mediator will not tell either parent what to do, but he or she may provide some guidance regarding what typically happens in a case.

If the parents can’t work together appropriately or are otherwise unable to reach an agreement, the mediator may attend the settlement conference and express an opinion to the Judge regarding an appropriate parenting plan. As such, it is important that you are always thoughtful and on your best behavior with the mediator, not only because that will make it more likely that you will reach an agreement, but also because both your behavior and the positions that you take will impact the mediator’s opinion of you as a parent.

It is important when you talk to the mediator that you not limit yourself to legal terms such as, “primary custody,” or “joint custody.” It will be more productive if you talk about what you want in terms of what those legal phrases represent. For example, you might say that you think it is best for both parents to have an equal say in the decisions that are made about the children, so you want to share legal custody.

The law prefers joint legal custody, which means that decisions affecting the children’s health, education, and welfare are made only by agreement of both parents. The decisions that must be made together are major decisions like where the children will go to school, what religion they will practice, what sports they will play and where, who the doctor and dentist will be, who provides after-school care and the like. It is not what time they eat breakfast or go to bed. If you do not believe that joint legal custody is appropriate, be prepared to discuss why not. Focus on the inability to communicate effectively or the disagreement on major issues. Be specific about the inability to communicate. For example, cite things like, “I call and she won’t call me back for days,” “when I call, his girlfriend won’t put him on the phone,” “she yells at me,” or “he hangs up on me.” Be prepared to talk about what you have done to try to resolve the inability to communicate and also what your contribution to the communication problems might be. Remember that both parents contribute to the inability to communicate, even if those contributions are not equal.

Be aware that if one parent has deferred to the other in the past in decisions regarding the children, that may or may not be enough to prevent joint legal custody in the event that the parent who has previously not been involved now states that he or she does want to be involved. The factors that will relate to analysis of that issue by the mediator and the judge are: the length of time that one parent has made all of the decisions, whether the parent who has been making all of the decisions has given the other parent an adequate opportunity to be involved in making the decisions, the apparent motivation of the parent who now seeks a greater voice, whether the parent who now wants to be involved has any disagreement with the decisions that have been made, and the apparent ability of the parents to communicate.

Obviously, if legal custody is at issue, the behavior of each of the parents in mediation will be very significant to the mediator. Be certain to be very civil, respectful, and polite. Do not show anger or frustration; rather, express disagreement calmly and factually. Do not use an accusing tone of voice. Do not raise your voice. Do not interrupt. If you are interrupted, address the mediator directly and ask for assistance in finishing what you had to say. Remember to keep your comments framed in terms of the children. Do not let marital issues (“you left us”), spill over into the mediation.

When you are discussing physical custody, be careful to talk about the time that you want with the children in terms of what has historically happened as well as what you feel that you can offer to the children. If you have been the person who traditionally has done homework with the children, say so. Don’t say that the other parent is incapable of doing something such as homework with the children unless you know it to be true. It would be better for you to express your position in terms like, “We have always done it this way, it works well for the children and even though the other parent had the opportunity to be involved, he or she did not do so.”

A consideration in determining what schedule is in the best interest of the children is consistency and routine. Be prepared to discuss how the schedule that you want meets those needs.

Remember that “joint physical custody” does not mean equal time with each parent. If there is joint legal custody, whether the physical custody arrangement is labeled “primary physical” to one parent or “joint physical custody” to both parents has no legal significance.

Try to treat the mediation like a business negotiation. Try to keep your emotions in check. Listen to the other parent and the mediator and respond to what has been raised, not something that is bothering you from five minutes ago. Think before you speak. If there is a way for both parents to get what they want, try to give that alternative careful consideration. Don’t sweat the small stuff. Is it really worth it to refuse to agree that the children can be returned at 6:30 p.m. instead of 6:00 p.m. ? Probably not.

Despite all of the positive aspects of reaching an agreement with the other parent, that is not always possible. If you have tried mediation in good faith and it was not successful for you, the Judge will not hold it against you. Do not feel pressured to reach an agreement. Mediation is intended to facilitate agreement between the parties. It is not intended to substitute the mediator for the Judge. You retain the right to negotiate through us with the other side. Sometimes the progress made in mediation will form the basis of a final agreement negotiated between the attorneys.

Remember that financial issues are not part of this court-based mediation. By bringing up issues relating to money in the custody mediation, you will arouse suspicion about the physical custody arrangement that you seek and whether it is somehow motivated by a desire for an advantage with respect to child support or some other financial issue in your case. If child support is raised, the best response you can give is that your attorney has told you that mediation is to discuss custody and not child support.

Be prepared, be thoughtful, be respectful, and you will be fine in mediation.

If you have any questions, please call.

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