Robert Gradel Law Blog

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Problems confronting the mediator in child custody disputes.

There are a number of difficult problems confronting the mediator when attempting to resolve child custody disputes. The parties are under tremendous psychological pressure at mediation. On the list of the most difficult and stressful periods during a person's life, death and divorce are at the very top. Dad comes into the mediation thinking that the judges and juries are all biased against men, and mom comes into the mediation thinking that good mothers always wind up with custody of the children, and if she is not the primary custodian, everyone (including herself) will believe she must have done something really bad to "lose" custody of the kids. Another problem often confronting the mediator is that one or both of the parties are there simply to have their "ticket punched" prior to trial, and may be working against you. For example, the lawyer may have been paid a large sum of money to try the case. If the case settles at mediation, the client may want to discuss a refund of the retainer. Another problem is lawyer and client ignorance concerning the actual day to day difference between winning and losing, sole managing conservatorship and joint managing conservatorship and the rights and duties of the parties post divorce. Don't be surprised to find that the client's lawyer is uncooperative, spouting nonsense like "everyone is entitled to their day in court" or "I don't want to discuss my trial strategy" when the mediator attempts to discuss the problems and possible solutions. Sometimes the mediator can engage the client one on one in the discussions, circumventing and/or educating the attorney in the process. Occasionally the lawyers will slip up and allow the mediator to speak to the parties alone without the attorneys being present. An alert mediator can take advantage of this opportunity to make progress without the client looking for guidance for every decision from their lawyer. Other obstacles to settlement include job schedule and distance between the parties. It is more difficult to co-parent if one spouse is planning to move to Alaska. Lack of financial resources of one or both of the parties will eliminate many creative solutions. CPS involvement, psychological reports and other "bad facts" evidence can shorten the mediation dramatically.

How does the mediator get started?

A glance at the Family Code provides some pretty good talking points the mediator can use when the mediation begins:

The public policy of this state is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. Tex. Fam. Code 153.001(a)(1).

The guidelines in the standard possession order constitute a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the exclusive right to designate the primary residence of the child in a suit. Fam. Code §153.137.

There is a rebuttable presumption that the standard possession order provides reasonable minimum possession of a child for a parent named as a possessory conservator and is in the best interest of the child. Tex. Fam. Code §153.252.

It is preferable for all children in a family to be together during periods of possession. Tex. Fam. Code §153.251(c).

The Court may enter an order that varies or deviates from the standard order when the parties agree to the deviation. Tex. Fam. Code §153.255.

If the Texas Standard Possession Order (SPO) is inappropriate, the court is ordered by the Code to modify the possession order and may consider:

  • the age, developmental status, circumstances, needs, and best interest of the child;
  • the circumstances of the managing conservator and of the parent named as a possessory; and
  • any other relevant factor. Tex. Fam. Code §153.256.
Another tool at the mediator's disposal has been the change from Wednesday overnight to Thursday overnight in the SPO. If the non-custodial parent elects the alternative possession times, this will allow the non-custodial parent and the children five days in a row every first, third and fifth weekend during the school year. (Don't forget, weekends always begin on Fridays and not the previous Thursday overnight.)

Practical suggestions.

The beauty of a mediation, as we all know, is that the parties can tailor the order to fit their particular circumstances. Prepare a calendar prior to mediation showing the SPO visitation. I have heard it said that if you take the SPO and calculate the time the non-custodial parent has with the children, it is about 38% of the time. The parties are essentially arguing over 12% of the child's time. I have not gone to the trouble to count each hour to verify that fact, but I have counted every day during the year each parent would have contact with their children under the SPO. During a twelve month period, dad will get to see the children for 192 days out of the year, with mom having contact on 278 days. I have included in this article a March and April 2004 calendar for a typical family in which the father is the non-custodial parent. There are 12 days in which Dad does not have contact with the child, and 11 days in which Mom has no contact with the child. For April 2004, there are only 14 days in the month in which Dad does not have contact with the child. Dad arguably gets the most "quality" time (weekends and holidays) in which he and the kids can plan excursions, whereas mom has the time that will necessarily involve barking at the kids to get their homework done and getting ready for school in the morning.

Another idea to consider at mediation is to negotiate a requirement that the children reside within a specific school district. This allows the non-custodial parent to exercise the alternative possession times, and will allow greater flexibility in writing a workable order. Sometimes the parties will agree to omit a finding that either parent has the exclusive right to establish the residence of the child. If the parties agree to a split custody arrangement, this may cinch the deal by removing evidence of the actual "winner."

I know it sounds cynical, but sometimes money will help bridge the gap in custody litigation. You may be able to help the parties settle by preying on their misunderstanding about how much an income tax deduction is actually worth. In 2004, the exemption for a child is $3,100.00. If mom has a low paying job making less than $14,000.00 per year, she is in the 10% tax bracket, meaning the deduction is worth $310.00 per year to her. This is not much to give up to avoid a child custody jury trial. If dad is in the 28% tax bracket, the deduction means $868.00 to him. Many non-custodial parents think that their child support goes for whiskey, dope, car payments and fast food. Modifying the monthly child support or other financial concessions may settle the case.

Is it Crazy to Involve the Children in the Mediation?

Including the children in the mediation process may help the parties focus on the harm the litigation is doing to them. Mediation is confidential, so what the children say cannot be used in court. This could result in more emphasis on parenting, and less focus on crushing the other parent in court. You must be very careful that you do not harm the child during this process by changing the focus from what is best for them to forcing the child into temporarily siding with one parent. However, in the right circumstances, you may want to consider suspending the mediation and resuming with the child and/or the child's therapist joining in the discussions.

Suggested alternative possession orders.

Is one parent an airline employee, in law enforcement, fire fighter or other job working non-standard hours? Does either side have a significant amount of free time to take the kids to ball games and such? If so, modifying the SPO to fit the parties situation could seal the deal.

Here are some ideas for possession orders that are alternatives to SPO visitation:
  1. Split custody - Alternating months Child spends January, March, May, July, September, November with one parent, then February, April, June, August, October and December with the other. SPO visitation with the non-custodial parent.

  2. Split custody - 2-2-5-5 Begin with Monday, Tuesday for Mom, then, Wednesday, Thursday for Dad, then Fri, Sat, Sun, Mon, Tues for Mom, then Wed, Thurs, Fri, Sat, Sun for Dad. Then start over.

  3. Split custody - alternating years Non-custodial parent gets SPO visitation while the custodial parent has primary.

  4. Split custody - Alternating weeks Friday to Friday at 6:00 p.m., SPO visitation for holidays, each party may designate one weekend in the summer for their vacation period (thus giving the parent 10 consecutive days with the children).

  5. Split custody - split year Each parent has custody for six months, with SPO visitation for the non-custodial parent. This will generally work best for kids under 5.

  6. Split custody - One parent has school year, the other parent the summer. If mom raises children during the school year, dad will have SPO visitation during that period. Mom will have one 7 day period during dad's 3 month summer period, with notice by April 1

The order below is one example of making the possession order fit the parties. The following possession order was entered in a case in which Dad had a job which was very time consuming during the summer months, leaving him little time for the child, but work slacked off during the rest of the year. The case settled by splitting up the school year, granting Mom alternating possession of Mondays and Tuesdays, Dad got Wednesdays and Thursdays, with SPO for the holidays. Dad got 2 weeks in the summer. Mom agreed to move with the child and reside in a specific school district so the order could be implemented. In the order, neither parent was given the right to establish domicile of the child. They agreed to split the income tax exemption in alternating years, father agreed to pay some child support.

Possession Order

The Court finds that there is good cause to deviate from the Standard Possession Order. IT IS ORDERED that the conservators shall comply with all terms and conditions of this Possession Order. IT IS ORDERED that this Possession Order is effective immediately and applies to all periods of possession occurring on and after the signing of this Possession Order. IT IS, THEREFORE, ORDERED:

(a) Definitions
  1. In this Possession Order "school" means the primary or secondary school in which the child is enrolled or, if the child is not enrolled in a primary or secondary school, the public school district in which the child primarily resides.

  2. In this Possession Order "child" includes SUZIE Q. SMITH, who is a subject of this suit while that child is under the age of eighteen years and not otherwise emancipated.
(b) Mutual Agreement or Specified Terms for Possession

IT IS ORDERED that the conservators shall have possession of SUZIE Q. SMITH at times mutually agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that the conservators shall have possession of SUZIE Q. SMITH under the specified terms set out in this Standard Possession Order.

(c) Specific Periods of Possession

Except as otherwise explicitly provided in this Possession Order, when MOMMY SMITH shall have the right to possession of SUZIE Q. SMITH as follows:

  1. Weekdays - On Monday and Tuesday of each week during the school year from the time school starts on Monday morning until the time school starts on Wednesday morning.

  2. Weekend Possession - Every other weekend during the school year from the time school begins on Friday until the time school begins the following Monday. In the event that weekend periods of possession are interrupted by holiday periods of possession, then the alternating weekend periods shall begin following the holiday with the party that did not have possession of the child during the holiday period.

  3. Christmas Holidays in Even-Numbered Years - In even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 26.

  4. Christmas Holidays in Odd-Numbered Years - In odd-numbered years, beginning at noon on December 26 and ending at 6:00 p.m. on the day before the child's school resumes after that Christmas school vacation.

  5. Thanksgiving in Odd-Numbered Years - In odd-numbered years, beginning at 6:00 a.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

  6. Spring Break in Even-Numbered Years - In even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

  7. Extended Summer Possession by MOMMY SMITH

    MOMMY SMITH shall have possession of the child the day after the child's school is dismissed for the summer vacation and ending on the day before school resumes at the end of the summer vacation in that year, subject to the right of DADDY SMITH to exercise summer periods of possession as provided herein. These periods of possession shall begin and end at 6:00 p.m.

  8. Child's Birthday - If MOMMY SMITH is not otherwise entitled under this Standard Possession Order to present possession of the child on the child's birthday, MOMMY SMITH shall have possession of the child beginning at 6:00 p.m. and ending at 8:00 p.m. on that day, provided that MOMMY SMITH picks up the child from DADDY SMITH's residence and returns the child to that same place.

  9. Mother's Day Weekend - Each year, beginning at 6:00 p.m. on the Friday preceding Mother's Day and ending at 6:00 p.m. on Mother's Day.

Notwithstanding the weekend and weekday periods of possession ORDERED for MOMMY SMITH, it is explicitly ORDERED that DADDY SMITH shall have a superior right of possession of the child as follows:

  1. Weekdays - On Wednesday and Thursday of each week during the school year from the time school starts on Wednesday morning until the time school starts on Friday morning.

  2. Weekend Possession - Every other weekend during the school year from the time school begins on Friday until the time school begins the following Monday. In the event that weekend periods of possession are interrupted by holiday periods of possession, then the alternating weekend periods shall begin following the holiday with the party that did not have possession of the child during the holiday period.

  3. Christmas Holidays in Odd-Numbered Years - In odd-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 26.

  4. Christmas Holidays in Even-Numbered Years - In even-numbered years, beginning at noon on December 26 and ending at 6:00 p.m. on the day before school resumes after that Christmas school vacation.

  5. Thanksgiving in Even-Numbered Years - In even-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m. on the following Sunday.

  6. Spring Break in Odd-Numbered Years - In odd-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation.

  7. Summer Weekend Possession by DADDY SMITH - If DADDY SMITH gives MOMMY SMITH written notice by April 15 of a year, DADDY SMITH shall have possession of the child for four weekends beginning at 6:00 p.m. on Friday and ending at 6:00 p.m. on the following Sunday during the summer possession by MOMMY SMITH in that year, provided that DADDY SMITH picks up the child from MOMMY SMITH and returns the child to that same place. Said weekends shall coordinate with DADDY SMITH's days off work.

  8. Extended Summer Possession by DADDY SMITH - If DADDY SMITH gives MOMMY SMITH written notice by April 15 of a year or gives MOMMY SMITH fourteen days' written notice on or after April 16 of a year, DADDY SMITH may designate fourteen (14) days of uninterrupted possession during the summer beginning no earlier than the day after the child's school is dismissed for the summer vacation and ending no later than the day before school resumes at the end of the summer vacation.

  9. Child's Birthday - If DADDY SMITH is not otherwise entitled under this Standard Possession Order to present possession of the child on the child's birthday, DADDY SMITH shall have possession of the child beginning at 6:00 p.m. and ending at 8:00 p.m. on that day.
(d) General Terms and Conditions Except as otherwise explicitly provided in this Possession Order, the terms and conditions of possession of the child that apply regardless are as follows:
  1. Surrender of Child by DADDY SMITH - DADDY SMITH is ORDERED to surrender the child to MOMMY SMITH at the beginning of each period of MOMMY SMITH's possession at the residence of DADDY SMITH or at the child's school.

  2. Surrender of Child by MOMMY SMITH - MOMMY SMITH is ORDERED to surrender the child to DADDY SMITH at the beginning of each period of DADDY SMITH's possession at the residence of MOMMY SMITH or at the child's school.

  3. Personal Effects - Each conservator is ORDERED to return with the child the personal effects that the child brought at the beginning of the period of possession.

  4. Designation of Competent Adult - Each conservator may designate any competent adult to pick up and return the child, as applicable. IT IS ORDERED that a conservator or a designated competent adult be present when the child is picked up or returned.

  5. Inability to Exercise Possession - Each conservator is ORDERED to give notice to the person in possession of the child on each occasion that the conservator will be unable to exercise that conservator's right of possession for any specified period.

  6. Written Notice - Written notice shall be deemed to have been timely made if received or postmarked before or at the time that notice is due. This concludes the Possession Order. Duration. The periods of possession ordered above apply to SUZIE Q. SMITH the subject of this suit while that child is under the age of eighteen years and not otherwise emancipated.
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