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Mediation may resolve child-custody impasse

Child custody issues can get complicated when they involve members of the military — especially when we are at war. I have seen and heard about numerous cases involving parents called to active duty who, when they return home, find they have lost custody of their children. In these difficult and emotional cases, it is important that both sides try to put their differences aside in order to decide what is truly best for the children.

Aside from the financial expense of litigating a custody matter, parents should also consider the emotional toll that such litigation takes on themselves and their children. As many lawyers practicing family and matrimonial law will attest, there are no winners in a contested custody case (except us lawyers, who get paid every time we go to court).

Mediation has become an increasingly popular alternative to litigation in custody cases; I recommend looking into it. With mediation, a neutral third party trained in mediation and negotiation skills helps guide parents toward an agreement that each of them can abide by and uphold. However, I don’t suggest using this form of dispute resolution in cases involving substance abuse, domestic violence or child abuse.

It is important to keep some things in mind before starting the mediation process. Among them is the need to thoroughly consider your plans and wishes for you and your child’s future. It is also imperative that you avoid what you believe is past improper or negative conduct on the part of your child’s other parent. You have to be prepared to cooperate and interact with him or her in a positive and constructive manner.

You should also be aware that a mediator does not make a decision for you or your child’s other parent. He simply guides the two of you toward an agreement, if possible. It is not the mediator’s job to pressure or require you to reach an agreement if you are unable to.

Often, when it becomes apparent to the court or your attorney that mediation is going to be unsuccessful, a forensic evaluation will be ordered. The purpose of a forensic evaluation is for the court to obtain additional information on each parent, as well as the children, in an effort to make a determination that is in the best interests of the children. The psychologist or psychiatrist performing the evaluation does not treat the family or provide advice or guidance; he will maintain a distance and interact solely for the basis of making observations in order to provide a recommendation to the court.

While you should be aware that what you disclose to a forensic evaluator will likely be disclosed to your attorney, the other parent’s attorney, the child’s law guardian (a person appointed by the court in most states to ensure the children’s legal rights are protected) and the court, it is best if you are open and objective throughout the evaluation, not defensive or guarded. The evaluator may also request the names of individuals, often referred to as collateral witnesses, who could provide objective information and who have nothing to gain from a determination in your case. Examples of such witnesses are teachers, co-workers, neighbors, doctors and day care providers.

The forensic evaluator will likely perform a number of tests to determine any clinical or personality disorders, or symptoms of maladjustment disorders. The results of the various tests administered for the forensic evaluation are used to provide insight into the parenting capacity of each parent, not to determine who is a better parent.

As you will likely find if you get to this point, a forensic evaluation report often reveals you both are good parents who love your children and whose children love you. Keeping this in mind throughout the process may help you and your former significant other in making the best decision for your children —the most important parties in any custody case.

The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully Esq. is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.