Mediate in the comfort of your own home. Now offering Online Mediation Services 

Custody and the court system: why it might not be the solution you're looking for.

When it comes to divorce and relationship breakdown, for every person desperate to avoid the courtroom, there's another who thinks that court is the only solution.

As soon as they realize that a separation is on the cards they start to draw battle lines. They begin lining up their evidence in an attempt to "prove" that their spouse or co-parent is the one in the wrong and undeserving of custody. They look forward to having their day in court, convinced that a wise and knowledgeable judge will immediately see what's what and tell their ex exactly how they should be parenting.

Only, that's not really what the court is for.

And while the judge may well be wise and knowledgeable, forcing you or your ex to parent in a specific way isn't necessarily part of their job description!

The role of the courts: macro versus micro.

So what is the judge's role? And how do you know if you need to go to court to resolve your family law dispute?

I like to look at it like this: it's a case of the macro versus the micro. The law is there to take care of the macro, the big picture stuff, and the truly scary situations. If your child is in danger, then absolutely, the law, the court system, and the judge are all there to help — that most definitely is in the judge's job description. In fact, it's only when there is a real threat to the child that the judge will take the micro things into account. However, it's also worth noting that the court's interpretation of what constitutes a dangerous situation for your child, might not necessarily match up with your own views.

It's also tempting to think you know exactly how your situation will pan out if you decide to go down the route of seeking help from a judge. You've heard from friends or co-workers about how a judge handled their divorce proceedings, or how a certain judge ruled in favor of their friend's boss's daughter's colleague that one time. Their situation sounded just like yours…

In reality, the judge that you'll be facing won't be the slightest bit interested in how another judge ruled in a totally separate case. Judging is a hugely complicated profession and each judge will come to each case from a different standpoint, different views. All they can do, and all they are required to do, is to apply the law to your unique circumstances in a way that they see fit.

The one thing all judges do have in common? Once they've ruled, you're legally bound to follow their decision, whether you think they came to the right conclusion or not.

Mediation: making your own decisions.

It's a hard situation. When you're going through a bad breakup, your natural instinct is to turn to someone for help, to entrust your future, and your child's future, to someone unbiased, someone wise, someone professional. Relying on a judge and the court system to sort everything out may feel like the only way through.

And for some couples it may well be the only way through the conflict of separation and divorce. For others, though, what they really need is to find a way to navigate all of the micro stuff they have going on — the arguments, the squabbles, and the conflicts that the judge won't want to hear about but that are really getting in the way of them and their partner moving on in a peaceful way.

This is why your greatest leverage, when separating, is figuring out a way to maintain a good enough relationship with your ex so that you can find a way to work through these issues (and the bigger conflicts too, of course) without resorting to threats of court.

It's far healthier than scorching the earth, destroying lines of communication, and thinking that relying on a court case and the judge "telling 'um" is a desirable plan B. Too many people have had the same thought and had it back-fire spectacularly, causing irreparable damage to their relationship and emotional harm to their child.

Of course, often trying to come to a fair and peaceful solution by yourself seems like too big a mountain to climb, particularly if your relationship breakdown has so far been less than amicable. In that case, you still have the option of turning to a knowledgeable and unbiased professional.

Mediators are generally well-versed in legal matters but unlike judges in the court system, they are trained to also look at the micro stuff you have going on in your relationship. They can help you look at both the little things and the big picture stuff so that you can take everything into account when you work out how to move forward in a way that suits you, your ex, and your kids.

The real bonus of trying to work things out by yourself? Flexibility.

Once a judge has made a decision, you're stuck with it whether it goes in your favor or not. Trying to have it overturned is going to take more time in court, a lot more money, and a whole load of additional stress for you and your child.

If you've managed to come to your own arrangements, however, nothing is set in stone. Even if you've sought help from a qualified mediator, you still hold all of the power. You make the decisions, you decide when to review them, and you have the option of amending them once you've seen how they're panning out.

When it comes to family law, the courts have their place, for sure. For some families the macro stuff is just too big, too serious, or too dangerous to be dealt with any other way. A judge's decision may well be the only safe path out of conflict. For many others, however, heading straight to a lawsuit isn't necessarily the best approach. While you've doubtless had many disagreements on how to bring up your child and how to move forward with co-parenting post-divorce, you are still in the best position to figure out what's right for your child, and how to find a way through your current conflict.

If that seems too difficult for you and your partner at the moment, why not get in touch? I can talk you through the mediation process and help you figure out whether it might help you avoid a court case. Schedule an appointment now.

You’ve decided on mediation — do you still need a ...
Co-parenting problem-solving: 7 questions to ask y...


No comments made yet. Be the first to submit a comment
Tuesday, 20 April 2021

By accepting you will be accessing a service provided by a third-party external to