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Mediation: Custody Modification

Mediation is an effective process by which a neutral third party aids opposing parties in identifying and resolving their disputes. Family law parties are encouraged by the courts, and in some instances ordered by the courts, to mediate. Mediation is appropriate in almost any family law matter.

Mediation is usually successful. Mediations are most successful when the attorneys are prepared, the parties have reasonable expectations, the parties and attorneys have sufficient time for the mediation, and the parties and attorneys are creative in dealing with the disputes.

One of the hardest cases to successfully mediate is the custody modification. A modification occurs after a custody order has been entered by the court. Parties tend to find that gathering evidence in a modification suit is more difficult than gathering evidence in an original suit. In an original suit, that is, either a divorce or suit affecting the parent child relationship, the parents have spent some time together and usually have intimate knowledge and details about the other parent. Each parent usually knows the other parent’s friends, acquaintances, work schedule, social schedule, etc.

In a modification, generally, that relationship has ended and both parties have moved on and usually in separate directions. Obtaining direct, firsthand knowledge in a modification case is usually a challenge. Often, the individual supplying the information is the child. The party requesting the modification has to decide, sometimes, whether to put the child on the witness stand at court to help prove the case.

A modification may occur when there has been a material or substantial change in circumstances, and the change is in the best interest of the child.

The following are examples of what I see for custody modifications: the expressed desire of a child twelve (12) years of age or older to live with the other parent; illegal drug use by a parent; parental alienation; Driving While Intoxicated (DWI) arrest or other alcohol related issue; and arrest for family violence.

Often in custody modification cases, one party will seek a custody evaluation of the parties and circumstances. The custody evaluation will consist of an independent neutral third party performing a forensic evaluation. The evaluation may consist of a home visit, interviews with the children, observation of each parent and the children, psychological evaluations, and interviews with collateral witnesses. Most are in depth and thorough.

The issues of a custody modification mediation are: where will the child live; will there be any child support paid; who will cover medical insurance; and what will the possession schedule be.

Often at mediation, the parties will agree to 50-50% split custody. Other times, the parties will agree to change custody. When a custody change is made, many times, the party receiving the children a majority of the time will forgo the receipt of child support.

Possession schedules can range from quite limited to 50-50%. As children get older, there are also issues of their activities, that is, will they be required to attend them and who gets to pick the activities.

Custody modifications are challenging, and often times, expensive. When the costs of trial are considered, it is common for the parties to factor in the time, cost, and stress of a trial. When they do so, they often decide to settle the case.

At the time of writing this article, my mediation success rate is around 90%. I have over a decade of courtroom experience in family law, guardianships, estate, and general litigation. I can mediate and arbitrate cases involving family law, guardianships, estate, and general litigation.

My goal is to listen, and to be fair and impartial. I believe that the main limitations on settlement are time and creativity. If we keep working at the case, odds are we will settle it.

[Nothing contained in this article is intended to be, nor is it, legal advice.]

Justin B. Morley

Mr. Morley primarily practices family law in New Braunfels TX.  He is Board Certified in Family Law by the Texas Board of Legal Specialization, and a frequent writer and speaker on family law topics.  He  has experience in ...

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