After taking the time to in my last blog series to discuss the ins and outs of divorce litigation, I hope to share more of my experience in the world of family law by turning to some blogs about mediation, my favorite method of dispute resolution. Most of my mediated cases involve divorce, however, it’s also possible to use mediation as a solution for coming to agreements that do not including divorce as well. For instance, mediation can be particularly useful for people who want to address family law issues like child custody and parenting times without discussing divorce. Mediation can also be used for couples that want to be legally separated, or make pre-nuptial or post-nuptial agreements.
The principles that are addressed when mediating parenting time and custody within a divorce, and outside of a divorce are often the same. However, the mechanism that turns the agreements made within mediation into binding orders can be very different for unmarried couples. Usually, it’s expected that the Supreme Court will incorporate a Stipulation of Settlement for a divorce or Separation Agreement into the Judgment without the need to see parties in court. My engagement with the couple will provide that after the settlement agreement is signed I can draft and submit the uncontested papers to the court for them. For the purposes of bringing the papers through the court system my name will go down as attorney for the plaintiff, but it is understood that I am neutral between the couple. The reason I can be listed as the attorney for the plaintiff in that instance is because there are no remaining issues of contention between them since we settled the case by the Separation Agreement.
For non-married couples, a mediator and matrimonial attorney such as me could simply draft an agreement for the parties involved, and I could even help them draft a petition that requests the court to sign off on their agreement. But one individual, will need to go on to petition the court. The couple will then need to appear in court. I cannot be the lawyer for either one in family court, when I am their child custody mediator as court appearances are required and between the mediating couple I am neutral. The way the system is set up in family court is that when a lawyer appears in court they are representing one of the parties.
Signing Off on Mediation Agreements
While it’s expected that most courts will sign off on a voluntary agreement that has been properly drafted by a divorce lawyer, such as myself, nothing will be binding regarding the children until the court signs off on it. This means that if a couple creates a custody and parenting time agreement that isn’t in the best interests of thee child, a court might decide to send the uncontested divorce package back, with a statement saying that the court is not comfortable signing off on that agreement. This once happened to me in a situation when parties agreed to share joint legal custody. While the father had liberal parenting time, the mother would have residential custody. After the couple signed off on this agreement, I prepared the uncontested divorce package and submitted it to the court. However, it was sent back by the court with a note that explained the judge would not sign off on the agreement, because subsequent to the time it was signed, two different women, including the wife, took out orders of protection against the father.
The solution that we came to for this particular case was that after the orders of protection had expired, we resubmitted the package with some changes. During this time, the parties agreed that mother would receive sole custody, and we came up with a schedule of parenting time that would ensure the safety of everyone involved. However, for couples that were never married, the mechanism can be a little more complex. I can discuss with the couple and we can make agreements in mediation about all of the issues that need to be included within a parenting and time and custody agreement with an unmarried couple, such as whether it will be residential custody for one parent or shared residential custody, or whether the parents will have joint decision-making authority or not. We can also discuss the schedule of parenting times, and whether there might be any specific provisions for vacations, holidays, and school breaks. However, though I can help the couple draft everything, the parties will need to appear in court without me as their lawyer to petition the court, and bring the mediated agreement through the court system.
Pushing Mediated Agreements Through the Court System
However, like with divorcing couples, the court will always retain discretion over how orders should be given when it comes to children. I always advise my clients that if a properly drafted agreement is submitted to the court, however, it could be used as evidence to a judge to suggest what is in the child’s best interests. Usually, the non-married couples will need to utilize the family court to get a parenting time and custody order. The difference here is that unlike with the submission of an uncontested divorce, the parties will be expected to appear in family court to get a custody order signed by a judge. For the divorcing couples, my retainer agreement with them when I act as their mediator states that although I’m neutral between the two of them, it’s understood that I can submit their uncontested divorce package using my name as the attorney for the plaintiff because there are no remaining issues of contention to address.
Ultimately, I can help unmarried couples to draft child custody and parenting time agreements and petitions that can be filed by one of them in one of their names, with the agreement attached as an Exhibit. They can then use that exhibit to help the court to make a court order for child custody and parenting time. The court will then issue a summons that asks the couple to appear in court, where they can inform the judge that they wish to make the agreement attached to an exhibit of the petition into a court order. So long as both sides both indicate that they wish to do this, and that the agreement is intelligent, knowing, and voluntary, the court will often sign off on the drafted order in line with the agreed terms. However, if one side chooses to change their mind about the agreement, then the other side could use that agreement as evidence of what is proper.
Although I can assist both divorcing and unmarried couples when it comes to dealing with agreements made through mediation about child custody and parenting times, the process can sometimes be more complex for unmarried couples on the basis that one individual within that couple needs to be the petitioner without me acting as their attorney. Of course, they are free to use another lawyer to bring the mediated agreement through the court system if they don’t want to do this alone.
To learn more about the concept of mediation, and how you might be able to use it to address issues with divorce and child custody, please feel free to read through some of our blog posts, or contact me at your earliest convenience. You can contact us either over the phone at 516-333-6555, or using our online contact form.