Navigating Child Custody Issues through Divorce Mediation

When parents divorce, child custody is often one of the most contentious issues. You both love your children and you both want what is best for them, but you have differing opinions on what that actually translates to in real life circumstances. You both want to spend as much time with your children as possible, yet you know that one of you might get more time with the children than the other. You do not want to give up your rights to be involved in and have a say about decisions regarding your children but you also know it is unrealistic to expect your former spouse to consult with you on what they are making for dinner or what color socks your child is wearing to school. 

When dealing with custody issues like these, many couples believe their only option is to bring the issues to a judge and let the court decide. However, can be another option. Divorce mediation can assist divorcing parents in resolving their custody disputes without letting a judge decide or spending a fortune on litigating the issues. An experienced divorce attorney with Johnson Law Group may be able to assist you in finding a mediator and resolving your divorce disputes in a more amicable manner. Call (720) 445-4444 to schedule a consultation. 

What Is Divorce Mediation?

Divorce mediation is a simpler and more amicable approach to ending a marriage. Mediation takes a collaborative, solution-oriented approach that allows divorcing spouses to create their own agreements around big issues without going to court. With divorce mediation, couples can navigate tough issues such as property division, spousal maintenance and child custody issues. 

Divorce mediation allows divorcing spouses to maintain their dignity and respect while also making use of a personalized problem-solving process. This sets the parties up for good decision-making going forward and ensures that everyone is taking care of their own well-being and looking out for the well-being of the children involved. Additionally, mediation can be as much as 80-90% less expensive than going to litigation and is far more efficient than waiting for a court date and a judge’s decision. 

Steps Involved in Divorce Mediation

Even if an individual has never been to court before, they are still often familiar with the process. They have seen it on television, in movies, or heard about it from friends or family who have been to court. They understand that they file paperwork, wait to be informed of their court date, appear in court, plead their case, and wait for a judge to make a decision. 

Divorce mediation tends to be a less familiar process for most people. Some people may have never even heard of it before it is suggested to them by their divorce attorney or a friend or relative who has gone through the process. Fortunately, divorce mediation is a fairly straightforward process. 

Agree to Divorce Mediation

Some divorcing parents are ordered to go through divorce mediation by the court, such as those whose divorce is in Denver County. In these instances, mediation is not optional. However, when not ordered by the court, divorcing couples can choose to attend divorce mediation themselves. 

If only one party agrees, divorce mediation is unlikely to be effective, even if both parties attend. Therefore, if only one party is willing, they may try to persuade the other party by pointing out that mediation is less stressful, less expensive, more efficient, and can provide a more satisfying and lasting resolution to a dispute more quickly. 

Choose a Mediator

Once the court orders divorce mediation or the divorcing couple has agreed to attend, the next step is to choose a mediator. The Colorado Judicial Branch’s A Party’s Guide to Colorado Court-Ordered Mediation offers a wealth of information regarding divorce mediation and mediators, including questions to ask a mediator and ways to locate a mediator. Parties should look for mediators who are competent, support both parties and encourage collaboration. Mediators should also be experienced in divorce law and understand Colorado’s divorce and mediation processes.

Whenever possible, both parties should be in agreement about who their mediator will be. If one party approves and the other party does not, the party who did not like the mediator may later say they felt forced to agree to things or that the mediator was not fair to them. 

Prepare for the Initial Meeting

While mediation may require multiple sessions, the initial meeting often requires a little more preparation than any subsequent meetings. Parties can make the first meeting more productive by taking care of certain things before that meeting, such as filling out any required paperwork. They can also work on creating a collaborative mindset rather than a competitive one, so they are willing to compromise and work together rather than fight to win what they want. 

Individuals should also be prepared to speak openly about the issues related to the mediation, including asset division, child custody issues, and other aspects not yet agreed upon. While it may feel uncomfortable to speak so openly about such personal matters, the more transparent individuals are with the mediator, the more easily the mediator can help guide the discussion toward resolution. Individuals should be aware that everything said in divorce mediation is confidential and cannot be used against them later. This knowledge may make parties more comfortable with being so open. It is our experience that both divorce parties almost always meet and speak with the mediator in separate spaces; the parties are rarely in the same space as each other and that is why we recommend a professional attorney to guide you through mediation.

Attend All Mediation Meetings 

Divorce mediation is intended as a collaborative process, or a process in which the two divorcing individuals work together to find solutions to their issues, including custody issues. Even with the best of intentions, sometimes these meetings will be unproductive, frustrating, or simply not go well. However, it is still important to attend all sessions. 

These mediation sessions allow both parties to share perspectives, voice their needs and envision ideal outcomes for the issues in dispute. To be successful, it requires both parties to be respectful and transparent and to attend all sessions. Even if the last session did not go as well as an individual hoped, they should still attend the next session with the same good intentions and willingness to find solutions. 

Draft and Review the Agreement

If mediation is successful, the divorcing couple is able to work out an agreement related to their custody issues and any other issues in dispute. The terms they agree to are then written into a document called a Memorandum of Understanding. This is not a legally binding document but it does outline the couple’s mutual intentions regarding their post-divorce arrangements. Both parties are provided a copy. 

Colorado does not legally require the parties to have a lawyer review this document, but they can choose to have their lawyer review it if they like. This review may draw attention to any potential red flags that might cause a judge to refuse to incorporate the terms into the final divorce decree. When drafting this agreement and having an attorney review it, parents should remember that per C.R.S. § 14-10-129, the best interests of the children is the standard the court will use when determining whether their agreement is acceptable. 

Use Agreement to Fill Out Legal Documents

Once the divorcing couple has reached an agreement and filled out their Memorandum of Understanding, they will use that to fill out their Marital Settlement Agreement (MSA) or Separation Agreement. These documents are more formal and detailed than the Memorandum of Understanding. Additionally, the MSA or Separation Agreement will become legally binding once they are incorporated into the legal divorce decree. 

Like the Memorandum of Understanding, there is no legal requirement to have a divorce attorney review these documents. However, because these documents will be incorporated into the final divorce decree, ensuring that they are free of errors and that the terms are accurate and what the parent agreed to is crucial. If you have an MSA or Separation Agreement that you would like to have reviewed, a divorce attorney with Johnson Law Group may be able to assist you. 

Finalize the Divorce Decree and Get Court Approval

Once the MSA or Separation Agreement has been created and reviewed, they are ready to be incorporated into the divorce decree. This is typically done by the mediator or by a legal document preparer, who then submits the proposed decree to the court for final approval. 

Once the judge reviews the decree, if all is in order, the decree will be approved. A final divorce decree is then issued and the divorce is officially complete. 

Seek Mediation Support As Needed in the Future

While not required, many divorced parents opt to return to return to mediation in the future. As their children grow and circumstances evolve, parents often discover they need to modify previous arrangements to meet their children’s changing needs. As these new custody issues and other situations arise, divorce mediation can help parents continue to make thoughtful decisions that are best for their children. 

Tips for a Better Mediation Experience

While divorce mediation is less stressful and can be more relaxed than taking custody issues to trial, there are still things that individuals can do to be more prepared and have a better experience. By using the tips below that are relevant to the individual’s case, they can possibly create a less emotionally-charged and more positive experience. 

Use Inclusive Language

In custody issues, parents often believe they know what is best for their children and in fighting for what they believe is right, they revert to more self-regarding language. They begin saying things like “my children,” which is confrontational. This language can also cause the other parent to feel they must become selfish about what they want, which leads to both parents fighting for what they want, which may or may not be what is best for their children. Instead, try to remember to use inclusive language like “our children” to show that the individual still respects the other parent’s role in their children’s lives. 

Focus on Working Together

Divorce can often make parents feel like enemies on opposite sides of a war, fighting for their cause. However, as parents, it is best for the children if the individuals can work together to co-parent. Instead of focusing on getting everything the parent wants, parents should focus on working together. They should look for where they agree on matters and work from there to find other areas of agreement. The more they find to agree on, the easier it may become to find more things they agree on until they have reached a complete agreement on their custody issues. 

Focus on Your Children and Promoting Their Well-Being 

In addition to working together, parents should focus their negotiations on their children and what promotes the children’s well-being. This can be difficult at times, particularly when a parent wants one thing but knows that another is in their child’s best interests. However, if parents can focus on promoting their children’s well-being when making decisions regarding custody issues, the children will thrive and the parents will ultimately be happier, too. 

Be Open to Compromise 

Parents in divorce mediation for custody issues need to be open to compromise. Whether through mediation or a judge’s decision, it is very likely that parents will have to give up at least one thing to resolve their custody disputes. Instead of focusing on what they are giving up, parents should instead look for common ground and build on that. Parents should also be willing to explore creative solutions to their custody issues.

Listen Actively 

Many people listen solely to reply. They want to challenge what the other person said and prove them wrong. Listening actively is a communication skill that entails listening closely to what the other person says in an effort to understand their perspective, thoughts, and feelings. By doing so, not only does the other person feel heard and understood, but both parties often find solutions much more easily when they have this deeper understanding of the other person. 

Consider the Long-Term Implications 

Children grow and their needs change. What is best for them in this moment may not be best for them in a year or in five years. Parents should carefully consider the long-term implications of the decisions they are making in divorce mediation to ensure they are meeting their children’s needs, as well as their own and their former spouse’s, both now and in the long-term. This means they should be open to changing the arrangements if needed, listening to their children’s preferences if or when the children are old and mature enough to express them, and not creating such rigid agreements that there is no room to change things later. 

Keep Your Emotions in Check 

Parents love their children and when they are trying to do what they believe is best for their children, emotions can become strong and even overwhelming. However, the divorce mediation process will be much better if parents can keep their emotions under control and stick to facts as much as possible. If it feels like emotions are beginning to run high, parents should ask for a brief break to take some deep breaths, calm down, and be able to come back prepared to negotiate with facts and logic instead of emotions. 

Be Prepared With All Relevant Documents

Custody issues are tangled with many other aspects of being a parent. Children’s medical, school, or other records may be relevant to custody requests. If domestic abuse, substance or alcohol abuse, or criminal activities are issues that will be raised, having police reports, financial statements, criminal records, or other documentation of these issues will be beneficial. Parents may also want to consult with an attorney to learn what other documents may be relevant so they can collect those before their first mediation session. 

Be Confident in What You Believe Is Best for Your Children

While compromise is a large part of the divorce mediation process, parents should never agree to an outcome they truly do not believe is in their child’s best interests. Therefore, it is important that parents are confident in what they believe to be best for their children. While they may ultimately need to compromise, it is also important to know when to stand by your belief and refuse to back down because the issue is too critical. 

Present a Logical Case With Facts to Back It Up 

While a parent may want to say “because I want them,” or “because I love them,” these reasons by themselves are not enough to be granted custody. When custody issues arise, parents need to present a logical case with facts to back it up. This means a parent needs to be able to show that they can provide a more stable home, have a better income, or are otherwise more suited to having custody than the other parent. They must have paystubs, witness statements, or other facts that can back up those claims. 

Stay Calm and Provide Proof If Other Parent Is Dishonest

One of the most frustrating things a parent may face is when their former spouse is dishonest with the mediator, particularly if the mediator believes them. While it may make an individual want to scream, the best thing to do is remain calm and provide proof of the other parent’s dishonesty. In some cases, this may be immediately done, as the honest parent may have the evidence handy. Other times, the dishonest parent may lie about something that the honest parent did not expect to come up with. When this happens, the honest parent should collect their evidence and bring it to the next mediation session. They can then begin the session by saying they would like to address something from the previous session and provide their evidence. 

Avoid Disparaging and Personally Attacking the Other Parent

There are many friendly divorces where the couple can remain friends after divorce. There are also many divorces where it is clear that the couple no longer likes each other. Regardless of how the individual feels about their former spouse, it is important to remember that they are still co-parents and must find a way to raise their children together. This means not disparaging or making personal attacks on the other parent. Unless the claim an individual plans to make is directly related to the custody issues and they have facts to back it up, they should not bring up negative things about their former partner. 

Prepare a Relationship Timeline 

Creating a timeline of the couple’s relationship, including details of when they met, got married, had children, underwent counseling, when and why they split up, and other details can be beneficial. Not only will it cut down on arguments over dates, it will also provide much of the basic information that the mediator may need so that the couple is not spending excessive amounts of time going over these basic details. 

Prepare a Parenting Timeline 

A parenting timeline that shows the existing custody arrangement since the couple separated can also be beneficial when working out custody issues. This can show who has been the primary caregiver during the marriage and since the separation, how much time the second parent has spent with the children, and other details such as missed visits. Additionally, if the parent includes details about extended family members, where they live, and their involvement in the children’s lives, this can help show a support system that may help an individual get custody. 

List Your Reasons for Custody Requests

Colorado courts tend to favor joint custody with both parents sharing both physical custody and decision-making authority. Therefore, if a parent is requesting any form of sole custody, they should be prepared with a list of reasons why their custody request should be granted. While this may convince the mediator, this list may also be necessary when the divorce decree goes to the judge for final approval. The judge may question why one parent has been given sole custody, and this list of reasons will make for a quicker approval or denial. 

What About Access & Visitation Mediation?

The Colorado Judicial Department’s Office of Dispute Resolution offers a mediation program called Access & Visitation Mediation that assists parents with custody issues. However, this program is designed as a resource for never married, non-custodial parents who are seeking to have access to or increase their visitation time with their children. The program is not for couples who are divorcing or revisiting custody issues related to their divorce. 

Parents do not need to participate in the Access & Visitation Mediation program to focus their mediation efforts on custody issues, though. If custody issues are the only issues in dispute, or if the parents wish to only focus on custody issues and deal with other issues separately, they can simply inform their mediator of this. 

How a Colorado Divorce Attorney Can Assist You With Child Custody Issues

Getting divorced when you have children is a difficult and complex process. Fortunately, there are ways to reduce the complexity and make the process a little more efficient and easier on both parents. Divorce mediation can assist couples in finding solutions to custody issues, asset division, and other divorce disputes. A compassionate Colorado divorce attorney at Johnson Law Group may be able to assist with your mediation by offering guidance on negotiation, reviewing Memorandums of Understanding and MSAs, and even finding a skilled mediator. Call (720) 445-4444 to schedule a consultation and review your divorce case today. 

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