5 Alternative Ways to Decide New York Child Custody

When you think of a child custody dispute, you likely imagine a courtroom. While litigation is one way to decide custody, other options are increasingly popular. See if one of these alternatives could work for your family.

Mediation

A mediator is a neutral party who helps parents agree on a parenting plan. Mediation is recommended for parents who have common ground and are able to interact civilly.

A judge may refer parents to mediation with the aim of avoiding trial. Parents may also choose mediation instead of litigation from the start, leave litigation partway through for mediation or leave mediation partway through for litigation. In the last option, you'll only need to litigate the issues you weren't able to mediate successfully.

Benefits of mediation include:

• Cool tempers: Parents communicate in a noncombative environment, which can lead to more amicable co-parenting.
• Control: Parents speak for themselves rather than have attorneys speak for them. (While parents can bring an attorney, most don't.)
• Family consensus: A parenting plan developed by the parents is more likely to be obeyed than one developed by a judge.
• Cost savings: Parents decide how to split the cost and often owe hundreds of dollars each, as opposed to many thousands for a trial.
• Flexibility: Parents don't have to schedule around the court's timetable.

Before the first session, parents complete a confidential intake form and pay a retainer fee, which they can split however they want. The retainer is like a down payment to reserve services for a certain number of hours.

At the first session, parents sign an agreement to mediate and discuss their expectations. If you have a suggested parenting plan, the mediator will help you assess its feasibility and thoroughness.

After that, parents come to mediation as many times as necessary to reach a full agreement or to determine that agreement on certain topics is impossible. Families usually need two or more sessions for custody and four to six for divorce, with each typically lasting up to two hours.

The state's formula for child support does not apply outside of litigation, so the mediator can help you decide on a payment that suits your family.

In child-inclusive mediation, the child participates. A family specialist interviews the child and reports back on the minor's concerns and wishes.

The cost of mediation varies. In New York City, parents often pay $250 to $450 an hour. In rural areas, hourly fees may fall under $200.

Low-income families can turn to a community dispute resolution center for free or low-cost mediation services. Some mediation clinics and training centers offer services on a sliding fee scale.

Parents can return to mediation at any time to modify their agreement or resolve conflicts.

Collaborative law

Collaborative law brings parents, their lawyers, mental health professionals and financial professionals (when necessary) together in a team environment similar to that of mediation. This method best suits parents who have significant trouble communicating with each other.

A different collaboratively-trained attorney represents each parent. The attorneys recommend mental health professionals — called family specialists or collaborative coaches — to support the parents in negotiations. The parents then select one together or opt to have separate coaches.

Benefits of collaborative law include those of mediation (above), plus:

• Legal input: Each parent has an attorney present to look out for his or her legal interests.
• Balanced communication: Attorneys help clients voice concerns as needed, which can balance communication dynamics.
• Support: The mental health professional can provide emotional support.
• Cost savings: Parents usually save thousands of dollars by avoiding trial (although they pay more than they would with mediation).

Before the process begins, everyone involved signs a participation agreement promising to communicate respectfully and honestly and not withhold information. If the parents leave collaboration for litigation, they have to hire new lawyers.

At the start, each parent meets with the mental health professional for an assessment.

Then the parents, attorneys and mental health professional meet together as many times as necessary to settle all the relevant issues. Some parents only need three sessions to reach full agreement, while others need five or more.

Bring documents that could support negotiations with you to sessions: proof of income, statements of assets and debt, your family's schedules, etc.

After each session, the lawyers debrief with their clients (one-on-one) and with the professionals involved.

Collaborative lawyers usually charge hourly, but some charge per session. Collaboration can cost 10 to 20 percent what litigating with an attorney would because it's a shorter process. Parents negotiate how to split the cost at the outset.

If necessary in the future, parents can use collaborative law again to modify the parenting plan they arrive at.

Parent coordination

Parenting coordinators (PCs) help resolve disputes between parents to spare children from conflict. They usually work with families after a custody order is issued.

Courts appoint PCs for parents who can't make decisions together, who involve children in their conflict, who return to court frequently or who disobey court orders.

Parents can also choose to hire a coordinator, perhaps for help navigating an existing court order or negotiating changes to a parenting plan.

Parenting plans, whether agreed upon by parents or decided by a judge, may require parents to see a coordinator before litigating future conflicts.

Benefits of parent coordination include:

• Longevity: Parents generally work with the PC for a year or more and get to know them well.
• Flexibility: Sessions are held on an as-needed basis.
• Proactivity: Coordination helps solve even little disputes before they turn into bigger ones.
• Limited interaction between parents: Parents can meet separately with the PC if they'd rather not spend time together.

The coordinator seeks to understand each parent's point of view, then helps brainstorm solutions. If the parents can't agree, the PC may make a recommendation to the court.

Coordinators are neutral toward parents but advocates for the child. If parents prioritize conflict between themselves, the coordinator will refocus attention on the child. An older child may meet with the coordinator to discuss their wishes.

A coordinator in NYC might cost $250 to $400 per hour, while hourly rates elsewhere in the state can be under $200. Parents usually split the costs evenly, unless a judge awards a different split or parents have their own arrangement. You'll need to pay a retainer fee up front based on how many hours of service you want to reserve.

Arbitration

Arbitrators are religious leaders or other neutral decision-makers appointed to settle disputes. Parties agree on an arbitrator or panel of arbitrators to hear their case. Divorce arbitration is rare, and pursuing custody on its own through arbitration is even less common.

The arbitration proceeds much like a court hearing or trial, with both parents (or their lawyers) presenting arguments and evidence so the arbitrator can issue a decision. Unlike in a courtroom, the decision may be based on religious law.

In New York, religious arbitration is most common in Judaism and Islam.

Jewish parents may choose to attend Bet din torah, in which one dayan (arbitrator) or three dayanim will oversee the case.

Islamic parents may turn to a qadid or imam to make decisions.

Custody is not often pursued through arbitration because either party can request a trial if they don't like an arbitrator's custody decision. New York courts will void an arbitration ruling that doesn't serve the child's best interest.

Keep in mind that religions often rule based on a parent's sex. For example, in Islamic law, the father receives sole legal custody of the child as standard. In Judaism, physical custody of a child over 6 years old typically goes to the parent of the same sex.

If you're interested in religious arbitration, speak to an attorney familiar with your religion's process.

Informal negotiation

If parents are able to negotiate calmly, they may be able to draft a parenting plan and visitation schedule without help from a neutral professional. They might reach an agreement on their own or with lawyers present.

If you don't have an attorney, you should at least have a legal professional review your settlement documents to ensure there aren't any errors that could cause problems. Additionally, the Custody X Change app and self-help websites and resources from your local court help with the process, which can be complex.

Tips for alternative dispute resolution

• Keep an open mind. Your parenting agreement should be a compromise.
• Don't view the other parent as an enemy. Think about how your child sees them.
• Be mindful of how conflict can harm your child.
• Stay respectful, and avoid using destructive language.
• Use "I" instead of "you" statements.
• Listen to the other parent's concerns.
• Speak up if you have questions or concerns.

Preparing for alternative dispute resolution

Preparation is as important when you decide custody through an alternative method as when you decide it in a courtroom.

You'll still be trying to convince someone — the other parent, a parenting coordinator or an arbitrator.

A proposed parenting plan with a custody schedule presents your argument persuasively. You may also want to present messages exchanged with the other parent, a log of important interactions with the other parent, your child's expenses, and more.

The Custody X Change online app lets you create all of this in one place.

With a parenting plan template, customizable custody calendars, parent-to-parent messaging, a parenting journal and an expense tracker, Custody X Change prepares you for any method of deciding custody in New York.

It empowers you to get what's best for your child.