Preparing for Mediation over Child Custody

Putting Your Heads Together: Preparing for Mediation over Child Custody

Determining child custody can be the most difficult and emotionally straining portion of negotiations with a former spouse. How much time a child spends with each parent and where they will live are undoubtedly major decisions and it’s important to keep emotions in check and to be fully prepared for every important step of the decision making process.

Article Image Going into a child custody mediation, some nervousness is completely natural, but these discussions are meant to bring about the decision that is in the best interest of the child and will offer them the greatest benefit while taking as little as possible away from either parent. In most scenarios, it is best for parents to come to an agreement without the help of a mediator, or in cases where the two parties are completely deadlocked, a Court Order.

The first, and most important thing to remember, is that the mediator’s entire job is to keep the bitterness between the parties to a minimum and encourage a healthy and fair decision. What occurs during the mediation can have an effect on every other remaining decision made in the proceedings, so there’s no lie in stating cooler heads generally prevail.

Prior to any mediation or any meeting with the opposite side, it is always good advice to relax beforehand and ensure you get plenty of rest. It seems like a basic suggestion, but reducing any potential stress or aggravation can make an immense difference when dealing with a sensitive situation like child custody. Ensure that you have no other meetings or obligations the day of the mediation and leave all the anger and stress outside the door when you go into mediation. Your attorney is there to support and assist you as well, so don’t be afraid to be open with them on how you are feeling about mediation.

Cooperation with the mediator can help them determine the best way to move forward, and telling the truth along with divulging all relevant details will help them determine the best course of action, and will help get your opinion across more effectively.

Often, mediators will ask that you prepare a parenting proposal, suggesting potential custody schedules for the children. It is important to take the other parent’s feelings and logistics into consideration when creating the schedule. A biased or unreasonable schedule can do much more harm than just being rejected outright. The more you can show you are placing your child’s best interests first, the heavier weight your opinions and arguments will carry during mediation and any potential evaluations.

When putting together your parenting proposal, it is best to consult with your attorney to ensure that all the details of the child or children’s lives are considered and that their needs are met. Major flaws in parenting plans can include an inability to properly structure custody switches at proper times, failing to take into account schooling or other scheduling concerns and letting acrimony dictate unreasonable schedules, like asking someone to pick up their children in the morning when their work schedule keeps them occupied until the afternoon.

Being prepared is the best way to obtain a favorable result from mediation. The more information you have readily available, the more willing you are to answer questions efficiently and properly. Working with your attorney is the best way to prepare for mediation. Don’t be afraid to ask any questions, as there are numerous terms that can be confusing and you want to be able to understand any terminology presented by the mediator. Knowledge is power and the party that is most prepared often comes off with the better result.

Another common misconception involving mediation is that judges, evaluators and mediators will automatically favor women and lean towards giving them full custody. Mediators do not make decisions based on any source of bias and instead, focus on the accessibility of both parents to the child and ensuring a safe and healthy environment for the child, both emotionally and physically. Their main goal is to make sure that both parents are able to contribute positively to the child’s relationship and if so, ensure that both have as close to equal access as possible.

Mediators are extremely pro family and encourage situations where the family can remain as close to the prior status quo as possible. They are aware of the intense stress you and your children may be under due to the divorce, and generally believe that access to both parents is the best basic course of action.

They will also be extremely patient and thorough during the mediation process, starting with an agenda covering each topic that will be discussed and then concluding each topic with an open discussion from each side. The mediator will also provide his or her own advice to help both sides come to an amicable and fair agreement. It is important to remember that even if it seems like the mediator is favoring the other side, they are impartial and will try to offer advice that supports a fair and neutral solution.

Finally, it is important to remember that this mediation is centered on custody of the child. This isn’t a time to bring up support payments or other issues that have nothing to do with the custody or welfare of the child. Also, every child’s life is different, so standard custody schedules may not work. When determining a final schedule, take into account both sides and be patient and understanding when working out a schedule for both you and your former spouse. While you and your former partner may still be at odds, keep in mind that a child should not be drawn into arguments, should not be used as a “bargaining chip” and that he or she deserves equal time with both parents in a supportive and healthy environment.

If you approach mediation with a calm and collected attitude and take the time to prepare with your attorney, it is much more likely the mediator will present a more favorable decision for the child, helping them to maintain the best possible situation during what must be a very difficult time. Developing a proper plan through mediation and attorney planning is the best solution to ensure your child remains in a happy and stable situation.

Mike's Top FAQs About Child Custody

How is a military pension divided in a divorce?

How is a military pension divided in a divorce?

Divorce proceedings are conducted by state courts and they can divide military pensions. The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) allows (but does not mandate) state courts divide military retirement pensions upon divorce, legal separation or annulment.

How much of the pension gets divided?

The share of a pension to the non-military spouse could be as low as nothing or as high as half.

  • The non-military spouse might get 50 percent of the pension only if the marriage lasted the service member’s entire military career.
  • If the marriage lasted for part of the military career, the pension division will probably be prorated to reflect the time the spouse served in the military.

How an ex-spouse gets paid?

The USFSPA has a 10/10 Rule which states that if the couple was married for ten or more years while a spouse performed at least ten years of service, the government will make payments directly to the ex-spouse.

If this rule doesn’t apply, but the non-military spouse is awarded a portion of the pension payments, the service member gets paid the entire amount but will be obligated to the correct portion to the ex-spouse.

Another way to get paid is to have an actuary evaluate the military spouse’s pension to determine its current cash value. The military spouse would then give the other spouse an equivalent value in cash or non-marital property, leaving the military spouse with exclusive rights to the pension.

Posted in: Divorce, Family Law, Military Divorce, Property Division

How are disability payments to a military veteran handled in a divorce proceeding?

How are disability payments to a military veteran handled in a divorce proceeding?

The federal Uniformed Services Former Spouses Protection Act (the “USFSPA”) permits divorce courts to award ex-spouses of service members part of “disposable retired pay” (the retired pay available (after necessary deductions) based on salary and years of service). How that’s divided is decided by an agreement between the parties or by the judge.

  • Under the USFSPA, military disability pay is not “disposable retired pay” and is not subject to division in divorce.
  • If a service member waives retired pay in order to get disability pay, an ex-spouse can lose out on hundreds or thousands of dollars which they might have received.

There are two kinds of military disability pay and both are excluded from the USFSPA definition of disposable retired pay:

  1. Military Disability Retired Pay: This is for those are disabled such that they can’t perform their military duties.
  2. VA Disability Compensation: This type of compensation from the Department of Veteran’s Affairs (VA) covers injuries or disabilities that occurred while on active duty, or which were made worse by active service, including service related (not necessarily combat related) mental or physical injuries.

To get these VA benefits, a service member must waive a certain amount of retired pay. If this is done, the amount waived is subtracted from the amount available to the former spouse.

Spouses can have some protections or take steps to get the maximum payments:

  1. If there is a separation or property agreement, it should include a provision stating if the service member waives any retired pay for disability pay, the service member would make a monthly payment to the non-military spouse in an amount that makes up for the lost retired pay.
  2. If there is no such agreement and the divorce issues are being litigated, the judge can be asked to retain jurisdiction to order the military member to pay spousal support in the future, or to modify an existing alimony order based on any change in the parties’ circumstances. If retired pay is reduced because of disability pay, the non-military ex-spouse could request the judge to order the military member to pay spousal support (or increase it) to make up for the retired pay that’s been lost.

 

Posted in: Divorce, Family Law, Military Divorce

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

What is the Service members Civil Relief Act (SCRA) in a Military Divorce?

The SCRA was enacted in order to help protect service member’s rights if and when they are called to active duty. It protects regular service branch members, in conjunction with members of the Coast Guard serving on active duty in support of the armed forces, members of the National Guard when serving in an active duty status under federal orders, and Reserve members who are called to active duty.

The SCRA affords the right for any court proceedings to be put on hold, or provided a “stay” to postpone any administrative activity if a member’s active duty has an effect on their ability to proceed in the case.  This specifically applies to child custody issues as well and a stay of court and administrative proceedings would be afforded in order to protect the non-present spouse’s parental rights. The SCRA would be incredibly helpful if a spouse were to attempt to change the status of child custody while the service member is deployed.

A ninety-day stay is automatically granted when a service member requests this protection in writing. However, any further delay is decided at the discretion of the judge, hearing officer or magistrate that is assigned to the matter. This protection is not afforded nor does it protect a member’s invocation right for any criminal court proceedings.

There are also many individual state laws related to military child custody. Through the USA4 Military Families initiative, the DoD is partnering with states in order to further support military families. Specifically USA4 Military Families is striving to educate policymakers and ensure deployment separation does not determine child custody decisions.

Posted in: Divorce, Family Law, Military Divorce

What is a Family Care Plan for Child Custody in a Military Divorce?

What is a Family Care Plan for Child Custody in a Military Divorce?

As with normal civilians, military couples are presented with child custody issues if they are seeking dissolution of marriage. Members of the military are aware that active duty often requires time away from home due to deployments, training or frequent relocations. These factors may present custody issues, however there are ways to prevent or relieve some of the stresses that can evolve in a military divorce regarding child custody matters.

A Family Care Plan is highly recommended and sometimes required in order to clarify necessary details about the care of your child if a service member is called to active duty or deployed at no notice. Although most couples aren’t required to establish a family care plan, if you are or become a single parent due to death of spouse, separation/divorce, a service member can remain active but must meet the family care requirements of DOD – essentially requiring such members to have a “family care plan.”

A Family Care Plan is a set of documents describing who will care of your child during specific instances or if a military member is away on deployment or training. When it comes to a Family Care Plan there are some slight differences depending on the service, however most have three basic requirements: short-term care providers, long-term care providers, and care provision details. These support details include naming who will care for the child, financial details, medical specifications, and logistical considerations pertaining to food, housing, transportation, etc. These named care providers must be a non-military person, who agrees, in writing to accept the care of the member’s child or children. This person will also sign the Family Care Plan, indicating they consent and understand the responsibilities they are being entrusted with.

Posted in: Divorce, Family Law, Military Divorce

Can parents create their own agreement for child support?

Can parents create their own agreement for child support?

Yes, parents can stipulate their own agreement regarding child support, but it must be approved by the court. In order for the court to consider reviewing the agreement, it must meet the following guidelines:

  1. There must already be an open court case between the parents.
  2. The agreement must contain the following information:
    1. Each parent is fully aware of his/her child support rights.
    2. Each parent is aware of what the guideline child support amount would be.
    3. Neither parent is feeling pressured or forced to agree on the stated amount.
    4. Neither parent is receiving public assistance or has applied for public assistance.
    5. Both parents think that the agreed upon amount is in the best interest of the child.

After you have reached an agreement with the other parent and have created a stipulation consistent with these guidelines, you will both need to sign the document. If you do not have attorneys, your signatures will need to be notarized. You can then submit the stipulation for the court’s review. If you have a court date scheduled, you can bring the stipulation with you to the hearing for the judge’s review and signature, or you can go to the courthouse and ask to speak with a family law clerk to get it approved and signed.

After you have received the judge’s signature, you’ll need to file the original with the court clerk, and serve a file-stamped copy of the order on the other parent (or their attorney, if they have one.)

Posted in: Child Support, Family Law