If you are separating and have children, you will follow one of several processes in order to set up your new arrangement. In a perfect world, this would be a joint decision. But maybe one parent has already opened up a family law case by filing a complaint for divorce at the Court. One or both parents may feel at the point of separation that it would be best to “let the Judge decide” important issues like parenting time schedules. Often when parents reach the point of seeking a divorce, they are completely exasperated and frustrated with each other.
And truthfully, once you and your co-parent have retained attorneys, it is often more difficult to simply sit down and hammer out an informal agreement on your own. However, it is important to understand that you are not necessarily committed to seeing a formal court process through to the end, even once a family law case has been started. Usually there are multiple opportunities for co-parents to reach agreement with the assistance of family law professionals prior to a Judge entering a Court Order.
Even if a case has been filed in Court, there is still an option to pursue a collaborative law process. When following this pathway, you and your co-parent would agree to stay, or stop, the court process. You and your co-parent would then work with a collaborative team outside the Court to reach agreement on important co-parenting matters. At a minimum, a collaborative team will involve two specially trained attorneys who will act separately on behalf of each co-parent. Other members of the collaborative team may be a financial neutral, a child specialist and one or two collaborative coaches. A collaborative coach supports the co-parents and develops the Parenting Plan with the assistance of the child specialist. A Parenting Plan that is agreed upon by co-parents in a collaborative law process is detailed and tailored to the particular needs of the children and co-parents.
Assuming that you continue with a formal court process, you and your co-parent will usually be ordered to work with a facilitator or participate in mediation. Both a facilitator and mediator may work within the Court and be subject to Court limitations. You or your attorneys may also agree upon the additional use of mediation beyond what the Court process requires in the hopes of reaching an agreement on important co-parenting issues. During mediation a neutral third party will meet with both you and your co-parent. The mediator may be an attorney or mental health professional and will have specialized training in working with co-parents. The mediator will help you and your co-parent to arrive at agreement, but will not make decisions for you. As in the case of a collaborative process, agreements reached with the assistance of a mediator can be very specific to the needs of your family.
In the court process you may also encounter a custody evaluator who studies your family and makes formal recommendations to the Court regarding where the children should live and other services that may benefit the family such as ongoing parenting coordination. If there is significant concern about the children’s well-being and one or both co-parent’s capacity to focus upon or provide for the children’s needs, a Best Interest Attorney may be appointed to represent the children in the court process. The Best Interest Attorney has the authority to waive privilege if there is any need for the Court to have access to mental health professionals who have worked with the children. A Child Privilege Attorney may be appointed to address this limited issue if this is necessary and a Best Interest Attorney has not been appointed in your court case.
The bottom line is that, depending upon the complexity of your family situation, as your case winds through the court process a number of professionals with different titles may come into the picture. Some of these professionals will be weighing in upon or making important decisions that determine what co-parenting will look like. While these professionals – including the Judge – may be very skilled and experienced, they do not know your children and your family the same way you do as the co-parents. For this reason, even though you may expend significant time and resources, the parenting time schedule in a Court Order entered by a Judge at the end of a formal court process may not be what either co-parent wanted or expected.
Committing early to co-parenting will save you time and money. It may be hard work to reach agreement with your co-parent on parenting time and other issues particular to your children’s needs. Compromise will be necessary. On some issues you may feel you are “losing” and your co-parent is “winning.” But working from the start with your co-parent is preferable to finding yourself with a Court Order, at the end of an expensive court process, that does not represent what either you or your co-parent really desires. Because with this Court Order as the starting point, you will then still have to figure out how to work together as co-parents to raise your children to adulthood.