The custody of a minor child it can be resolved by informal negotiations between the parents or other interested parties (usually with the help of lawyers); through alternative solutions of disputes outside the court (ADR) that tend to facilitate the voluntary agreement; or in the traditional way on the court — where a Family Court judge makes the final decisions. The majority of custody cases are resolved before they come before the judge of the Family Court; others, with informal negotiations of an agreement, or with the use of ADR processes such as mediation and the Law of Family Partnership. Below you will find a description of the options to resolve the custody of a minor outside of the court.
Agreement through informal negotiations
If the parents, or other parties involved in a dispute over custody, they are willing to work together informally to resolve all issues related to custody and visitation of the minor may negotiate a settlement (with or without the help of attorneys). In some cases, the parties in a custody dispute may prefer that the negotiations make them an lawyer; in others, the parties may negotiate between themselves, and then consult their lawyers before concluding any agreement. The specific process of negotiations will vary in the majority of cases, but the final result of the negotiations right will be a written agreement. This agreement is referred to as the “settlement agreement” in some states, while in other states, the document can be called “custody agreement” or “acknowledgment of paternity”. (More on the conclusion of an agreement below).
The Alternative Solutions of Disputes (ADR) and the Custody of Children
For the parents, and other parties involved in a dispute over the custody of a minor, another option for getting to a settlement is a Settlement Alternative Dispute (ADR) — including processes such as mediation and act of collaboration. The ADR can be a beneficial tool to solve the issues on the custody of a minor, depending on such factors as: the degree of conflict between the parents on issues related to custody and visitation; their willingness to work together and resolve these issues.
ADR processes tend to be less hostile and more casual that the agreement traditional made by the court; it may also facilitate the early establishment of a settlement. With the mediation Act and the Family Partnership, the parents or other parties in a conflict for custody (along with their lawyers), have the opportunity to actively participate in the decision making related to the resolution of custody and visitation; instead of letting third-party (judge or jury) make those decisions.
Rarely used in family law cases, arbitration is a more structured ADR, in which a third party neutral decisions after considering the evidence and arguments of each party. The arbitrator’s decision in a custody case is not necessarily final, and the parties can still resolve the key issues before the court.
Some states require that the divorcing parents try to resolve disputes over the custody of the mediation, therefore it is a good idea to understand your options. Learn more about the alternatives outside of the court to resolve the custody of a minor child.
Ending the custody outside the court: The agreements guardianship
Whether the parties resolve the dispute over the custody of a minor child through informal negotiations outside of court, or by means of an ADR, the result is a written document which states what was agreed. This agreement is shown generally to a judge for final approval. If the custody agreement is part of the divorce of the parents, is sent to the court in branch county/district of the state court where the divorce petition was sent.
There may also be an informal hearing in court during which the judge will ask some basic questions; also ask if each party understands and chose to sign a voluntary agreement. While the judge is satisfied with what is fair in the negotiations, and the terms do not seem to favour only one of the parties, the agreement will almost always receive court approval. In most states, the custody or the agreement of guardianship becomes a court order, a mandatory or “decree”, and the parents or other parties to the agreement must adhere to it or face the legal consequences.