SHOULD I TRY TO RESOLVE MY CHILD CUSTODY/VISITATION DISPUTE OUTSIDE OF COURT?
There are many reasons to consider settling your child custody or visitation case by agreement instead of resorting to the Courts. Some people feel that going to Court is the only way that they will ever see a fair result in their child custody dispute with the other parent. They may have reached this conclusion out of frustration with the other parent, out of anger, or simply because they have not considered other options. But while going to Court may ultimately be the best option in certain cases, it is always best to consider resolving your custody dispute by agreement and to exhaust those efforts before taking your case before the Judge.
No matter how talented your attorney or how strong the facts of your case, there is always a certain amount of risk involved in going to Court. Judges are human beings and subject to human errors, biases, and faults just like any one of us. While the Judge in your case will certainly be listening and trying his or her best to be fair to you and your child, you must understand that he or she may make a decision that is neither in your best interest, nor your child’s interest. Child custody law in Virginia requires the Court to consider a number of different factors in determining what is in the “best interest” of the child. The structure of the law leaves a great deal of discretion and latitude to the Court. In addition, since the Court’s schedules are often very crowded, the Judges often have a fairly limited amount of time allotted to take the evidence in your case. You and your attorney simply may not have enough time to introduce all the evidence and all the witnesses that may be helpful to you.
When you settle your custody or visitation case by agreement, you are in the driver’s seat. You and the other parent are in control and can get as creative as need to be to address all the issues affecting you and your child. When the Judge makes the decision for you, you are not in control, and the Court is not likely to get overly creative in solving the case. You and the other parent may both be unhappy with the result if the Court is left to this task.
Even more importantly, litigation of child custody almost always causes some amount of strain and anxiety for the child or children. Children are often more astute and aware of things than their parents give them credit for, and this often means that the parents sometimes fail to see and appreciate the effects that the litigation is having on their cihldren. Sometimes the strain of custody litigation can result in serious emotional and behavioral problems for a child, and can exacerbate already existing behavioral or emotional issues.
The cost of child custody litigation should also be of concern to anyone contemplating going to court. Litigation is almost always more expensive than the process of resolving a case, and child custody and visitation disputes are some of the best examples of this premise. Often, child custody or visitation disputes can involve the use of expert witnesses such as custody evaluators, mental health experts, and others whose fees must be paid. Custody and visitation cases are often very complex, requiring hours of intense preparation by the attorneys handling the case. While money should never stand in the way of making the right decision for your children, you must also consider your children’s financial future, and the impact that fighting over their custody may have on your (and their) future well being.
So how do you go about resolving a custody or visitation dispute? How can this be accomplished when the other parent seems so uncooperative and intent on fighting? There are a number of different approaches that can be applied to resolve disputes over child issues, including direct negotiation with attorneys, mediation, collaborative law, and the use of judicial settlement conferencing. Your attorney can guide you in the best approach to try and settle your case, but the most important thing for you to remember is that settlement is something you should seriously consider as an alternative to litigation.
Rinehart, Lowery, Butler, & Hodge, PLC