FAQs

Mediation for a child custody case is typically a day-long meeting at which the parties try to make agreements to settle the case.

Mediation will usually occur at the mediator’s office, with each party in separate conference rooms. Typically, there will not be a face-to-face meeting between the parties.

Mediation proceeds in an offer-counteroffer format, with the mediator helping each party develop their offers and communicating them to the other side. The child custody mediator’s job is to advocate for settlement—in other words, the mediator guides you toward compromises that will work for both parties.

Importantly, the mediator does not get to decide anything—the parties always have control and can choose to say “yes”, “no”, or simply make another counteroffer. The goal of mediation is to create and have everyone sign a Mediated Settlement Agreement (“MSA”) that addresses all of the issues in your child custody case.

Once an MSA is signed by all parties (and their divorce attorneys, if any), it is binding on all parties and cannot be revoked or overturned. It is normal for mediation to last all day and even into the evening depending on the difficulty of the case. However, the parties are always free to decide to end the mediation early if they believe that no progress is being made.

The custody mediator is normally paid by the hour, similar to the lawyers. Mediation can be an expensive day, but it is far less expensive than the cost of going to trial.

Ideally, you want to have a first offer ready to go prior to mediation, and you also want to have a fairly clear idea of what your bottom line is.

This is where your divorce attorney comes in—he or she will be able to guide you in deciding how to achieve your goals in mediation. In particular, you should prepare a budget (the court has a standard form for this) so that the child support discussion is anchored in real-world numbers. You should also prepare at least an outline of your desired outcome for parental decision-making rights and the parties schedule with the children.

This preparation is difficult to do without the help of an experienced family lawyer. Your lawyer’s experience is your guide to what is reasonable and appropriate under the circumstances of your case, and what is likely to happen at court if you do not reach an agreement.

For a detailed look at the process, see our Divorce Litigation Process Guide.

A contested divorce means that the parties are unable to settle or agree on the terms of their divorce and that the case must be decided by a judge and/or a jury. The parties may disagree on how their property should be divided, the character of property (whether separate or community), or they may disagree on child related issues.

There is no set amount of time that it takes to finalize a contested divorce. The average range for a contested divorce is 6-12 months.

More complex and more intensely contested cases take longer and, if the case is tried before a jury, it will certainly take even longer. The length of time for a case to reach completion depends on a variety of factors, and each case is different.

A first divorce “hearing” is usually a hearing on temporary orders.

Sometimes, parties cannot agree on who will get to live in the house during the pendency of the divorce, what the possession schedule for the children will be, or how money will be handled while the divorce is pending. The court has the ability to decide all of those questions, and a hearing with evidence from both parties – like a mini-trial – will be held to put temporary orders in place to govern the parties while the case is pending.

Often, parties are able to avoid a hearing on these issues and can come to an agreement on who will move out of the marital residence, where the kids will live, how money will be spent, etc. If not, one or both parties will file a Motion for Temporary Orders, and the judge will decide those important questions for them.

Other issues may be the subject of hearings, such as temporary restraining orders and injunctions, protective orders (in cases involving family violence), disputes over access to financial information and other important documents, and any other issue that needs to be addressed before a final settlement can be reached or final trial conducted.

Most of the time, the answer to that is yes.

Mediation is often required, and it usually results in settlement. It saves both parties money, as preparing for and conducting a trial can be very expensive. It also gives both parties a sense of ownership of the result.

Both parties and their divorce lawyers are usually able to recognize that there is a risk involved in putting the contested issues before a judge or jury, and there is value in settling a case in a manner that eliminates that risk.

The simple answer is that a divorce must go to trial if the parties are unable to settle it in mediation or otherwise.

Although the vast majority of cases are settled outside of court, some end up being decided by a judge and/or jury. While a judge must decide how property is going to be divided and what possession schedule the parties will have with the children, a jury can decide such things as:

• The characterization of property (whether separate or community),
• Who should have the right to designate the primary residence of the children,
• Whether a primary parent will be subject to or can lift a geographic restriction
• In the case of a claimed common law marriage, whether a marriage even exists

Sometimes, one or both parties have unrealistic expectations about what they should get in a property division. If the other party believes that a judge will treat him or her better than the other party is willing to do in a settlement, they may prefer to spend the money on a trial instead, and let a judge decide how to divide the property.

In cases involving children, the question of who should be the primary caretaker of the children and how much possession or access each party should have may not be something on which either party is willing to compromise – in that event, a judge and/or jury will have to decide.

Whether a party will be allowed to move out of a restricted geographic area sometimes has to be decided by a judge or jury, as there is often no middle ground to be reached when one party desires to move for a better job or because a new spouse is being transferred outside of the area. In short, any time finding a middle ground is difficult or even impossible, a divorce or modification case (child-related issues) can end up in trial.

The Respondent should meet with a divorce attorney to review the options available. If the Petition was not filed in the correct court, there are some objections that need to be made before an Answer to the lawsuit is filed.

Typically, responding to a Petition in a custody case is as simple as filing a one page Answer. The Answer needs to be filed by 10 a.m. on the first Monday after the expiration of 20 days from the date the Respondent was formally served with the Petition.

If a timely Answer is not filed by the Respondent, the Petition could go to the courthouse without notice to the Respondent and take a default judgment against the Respondent.

The Respondent is the person against whom the lawsuit has been filed. The person who filed the lawsuit is called the Petitioner. The Respondent is technically “responding” to the lawsuit.

A contested hearing in Family Court can be a temporary hearing or final trial at which the parties present evidence to the Judge (through personal testimony, documents and testimony from other witnesses) regarding the facts of the case. The Judge then makes a decision based on the evidence presented.

An uncontested hearing is one at which the parties have reached an agreement, and are only presenting their agreed order to the Judge so that the Judge can render judgment and sign the order.

A contested custody case is a lawsuit regarding the conservatorship (decision making), possession and financial support of children in which the parents (or people wanting to act as parents) cannot reach an agreement on how the case should be resolved.

A case may start out as contested, but settle through negotiation or mediation after the parties involved have been advised by their lawyers, and have spent time working through the issues to reach an agreement on all terms.

A case may start out as “uncontested” where the parties think they are on the same page regarding the terms of a final agreement, only to realize as they work through the details with their lawyers, that they are not in agreement.

A contested custody case will require a hearing or trial before the court, after which the Judge will issue a ruling based on the evidence presented.