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III. COURT SERVICES RECOMMENDATIONS/ CUSTODY EVALUATIONS
A. Mediation
In North Carolina child custody mediation is required before setting a matter on the trial calendar. (NCGS 50-13.1(b))Many matters can be settled at the mediation level, an outcome satisfying to both
the parties and the court.
A client can do much better at the mediation if the client receives advice and information before attending the mediation session. While the actual process differs from county to county, most are similar. Wake County requires two sessions, the first is for general orientation where the parties see a movie about how they should get along for the best interest of the children and they then set a return date to meet with the mediator. The mediation sessions last approximately one hour. In rare situations, a third session may be possible. Except for criminal matters or child abuse, statements made in mediation are absolutely privileged. An agreement reached at mediation is known as a “Parenting Agreement” and is deemed to be a custody order.
(NCGS 50-13.1(h))
Before sending a client to mediation, the family attorney should meet with the client and give the client an overview of what will happen. This is the chance you have to avoid trial. Over the past few years, I have come up with the following instructions to my clients:
1. Do not rehash what went wrong in your marriage, this is not a counseling session.
1. Bring two things with you to the mediation: your best case scenario, and your bottom line. Settle for anything
in between those two places.
2. Do not forget what your concerns are.
If it is alcohol, stay firm on your requirement that there be no drinking around the children, if it is making decisions about religion, put in that you will be the decision maker on that issue, whatever is important to you, this is the time to make sure it is in there because once it becomes an order, you cannot add terms. If you are the party against whom the restriction is sought, consider if the rule is justified or if you can live with it, if appropriate, make it mutual.
3. Remember you do not have to agree. If the other side will not move from his or her position, you do not have to agree with it.
4. Remember you can compromise, even if the other parent never gave a
bath or changed a diaper, that doesn't mean he or she can't do it. If the inactive parent turns into Super Parent, it may be a better situation for the child than when you were together.
5. Regardless of what
they say at mediation, it is not that easy to change the parenting agreement once it is entered. Do not agree to something that you can't live with.
6. Even if you and your child's other parent are
getting along really well and hope to get back together, enter into the mediation as if that is not going to happen. You need to craft an agreement that you can use if/when you are not getting along.
7. Be
mindful to the time asked for.
If the days requested by the other parent miraculously total 123, or, on the other hand refuse to budge past 121, it is probable that money is guiding the desire for time. Don't deny time based solely on money considerations, but be mindful of these issues.
8. Child Custody mediation does not include settlement of child support, nor is the right to visitation conditioned on payment of support.
9. Visitation is not your child's choice. It isn't fair to
anyone, parents or child, to place such an important decision in the hands of a child. You wouldn't let your child decide not to go to school, or not to wear his seatbelt, this decision isn't his to make
either. But be mindful that your child has emotions, too. It may be that you child needs to heal from the separation, or from the alienating behaviors of a party. Try to set up a plan that will
work, building towards more, not less time with each party.
B. Custody Evaluators
Long before you reach trial, you have made decisions as to the direction of your case. In most cases, a custody evaluation is unnecessary. It will merely state that both parties are good people, have strengths and weaknesses which make them human but will not be major factors in their ability to parent. Most of these cases will not reach trial. In an article entitled “American Psychological Association Guidelines for Child Custody Evaluation” which appeared in the July 1994 issue of American Psychologist magazine (Volume 49, no 7, 677-680) the APA set out custody evaluation guidelines and cited a 1987 paper presented by Melton, Petrita, Poythress & Slobogin which found that 90% of all divorce custody matters are settled by agreement. However, a significant number of cases can benefit greatly from a custody evaluation. These cases include a) cases where there has been a significant change in past conduct (i.e. sobriety, maturity, change in life goals, etc.) b) cases where a problem exists but is hard to prove without test data or expert evaluation (i.e. closet alcoholic, child alienation, paranoia, etc) c) cases where false allegations have been made (i.e. sexual abuse, inappropriate discipline or other conduct). If the opposing attorney and client will not agree to a custody evaluation, make a motion for such an evaluation under NCGA 1A-1 Rule 35. Often times the moving party will have to foot the bill, which can be significant.
Regardless of whether you are the party requesting the evaluation or an unwilling participant, it is in your best interest to participate in good faith, and cooperate fully with the evaluators. These people will produce a report which will have great weight with the court, the better you look, the better it will be for you. While evaluators try to be objective, it is impossible for any report to be written about another person that does not include some subjective judgment. Nor would we, as members, of society, wish for a decision that did not include personal observations and evaluation. Custody evaluators have a list of standards and guidelines which they follow. Your should be given a statement of the guidelines or the intent of the evaluators, or you may retrieve one yourself from various web sources.
When you receive your copy of a custody evaluation, your attorney and you should read it carefully. Mark any areas of disagreement or areas where you have questions. Your attorney should call the evaluator and ask for further clarification of these points. If the recommendations do not seem to follow from the evaluation the attorney will ask the evaluator how they came to the recommendations. If the recommendations and/or report seem off the mark, hire an expert to review the data, ore repeat the evaluation if possible. The test data should be objective enough to be reviewed by another trained expert. It is discoverable, and should be able to withstand review. NCGS 8A Rule 702-704 governing expert witnesses allows for testimony where the testimony would be helpful to the trier of fact. Such opinion need not be based on personal observation, but on data, hypotheticals, or listening to evidence at trial.
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Copyright © 2005 Bender Law Offices P.C., All Rights
Reserved.
Divorce Lawyers, Separation Attorneys, Family Law,
International Divorce, Mediation, Agreements, Child
Custody, Court Services, Alimony, Domestic Violence,
Child Support, Property Distribution, Spousal
Support
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