Decisions regarding child custody arrangements range along a continuum from the very informal, those agreements reached privately between parents, to the most formal procedural process, those decisions made by judicial determination following trial. Parents theoretically have the most control over the outcome of their private agreements, if they both participate fully and meaningfully in the decision-making. In contrast, parents have the most uncertainty and least control regarding the custody arrangement when the decision is given to a judge.

The notion of parents making private decisions regarding custody and visiting is an appealing one, from both a psychological and economic viewpoint. On an individual basis, parents can discuss their own children's particular needs and reach agreements which reflect those needs, parental desires, and family values, and they can do so without depleting limited economic resources. Indeed, approximately 60% of parents appear to settle custody matters at the time of separation.

However, the majority of parents have discussed these important issues very little, if at all, in doing so. Partly as a result of cultural assumptions unexplored, established family patterns, fear of conflict, and/or lack of financial resources, many parents arrive at custody and visiting arrangements primarily by default, rather than through a thoughtful consideration of their children's needs.


When parents are unable to settle custody and visiting arrangements on their own, there are several non-adversarial options available. Some parents turn to trusted advisors or decision-makers outside of the legal system, including extended family members, the clergy, or psychotherapists for assistance. A more recent dispute settlement option, that of custody or comprehensive divorce mediation, has become available in the private sector in all states. In mediation, decision-making remains with the parties, not the mediator, who serves as an impartial third party to assist parents to reach mutually acceptable agreements. In contrast to adversarial proceedings, mediation focuses on collaborative problem-solving and the needs of all family members in working to resolve custody disputes.

Several states, including California, Maine, and New Mexico, now mandate mediation as a first step process in attempting to resolve custody or visiting disputes. In many other states, and in numerous local jurisdictions, court-connected custody mediation is available on a discretionary basis, or required only for specific circumstances, such as when parents want joint custody. Studies of court-related custody mediation indicate high levels of satisfaction among both men and women, even when the agreements of the participants do not reflect their most desired outcome.

Adversarial Processes

At a more formal level of decision-making in custody disputes, parents must use attorneys to represent each parent's opposing position about what is in the child's best interest. Familiar with local judicial preference and rules, attorneys advise clients about their rights and likely outcomes, and either assist their clients to reach private negotiated settlements or encourage further litigation as a means of settling custody or visiting disputes. In states with legislation enabling parents to settle their own divorce matters and file "in pro per", or on their own behalf, the use of attorneys appears to have decreased dramatically. In large part, disenchantment with the adversarial system, the increasingly prohibitive costs of adversarial divorce proceedings, and the availability of excellent self-help resources accounts for this social trend. It is estimated that in California, more than 50% of divorce cases have one or both parties handling their own divorce, and in one jurisdiction with a predominantly lower socioeconomic population, close to 80% are not using attorneys for assistance. In a court mediation setting, one or both parents were not represented by counsel in nearly 40% of the cases disputing custody or access. The existence of a mandatory custody mediation program in California has enabled parents to either reduce their reliance upon attorneys, or bypass adversarial proceedings altogether.

When parents are unable to reach negotiated settlements, a range of the most formal legal processes are available for settling custody disputes in all states, including judicial hearings, custody evaluations, settlement conferences, and custody trials. In states without mediation programs, trials are a more common process for resolving disputes, representing an estimated 20% of all contested custody or access cases. In California, the mandatory mediation program has reduced the number of custody trials to between 1% and 5% of all contested custody cases.

While most states delegate the ultimate responsibility to judges for deciding custody disputes, parents and their attorneys have the option in Texas of using jury trials for determining custody outcomes. Regardless of who decides, adjudicated custody disputes are expensive (ranging from $50,000 to $300,000), lengthy (requiring one to three years for final settlement), public, and create a massive upheaval in the lives of all family members, generating even higher levels of mistrust, suspicion, and acrimony.

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