Alternative Ways to Decide Child Conservatorship in TX
Often, when people think of a dispute over children, their minds go straight to a courtroom complete with lawyers and a judge.
While traditional litigation is one way to decide child conservatorship, other methods are growing in popularity because of their potential to resolve issues faster, save parents money, and — perhaps most importantly — help families compromise.
See if one of the following alternatives might work for you.
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When parents have some common ground, mediation is a highly-recommended method of keeping decisions about conservatorship, possession and access in their hands. The neutral mediator helps parents resolve disagreements so the parents can file a settlement with the court.
The mediator typically meets with each parent in a separate room, moving between the rooms to explain parenting plan options and find an arrangement both parents are happy with. The mediator may ask parents if they'd rather discuss options face-to-face.
If you have a lawyer, they will accompany you and advise you during mediation sessions.
If parents reach an agreement in mediation, they will most likely step foot in a courtroom only once — to get a judge's signature. A judge will approve their proposed court order unless it's not in the child's best interest or one of the parents was influenced by violence.
Most families who choose to mediate reach settlement within a handful of sessions, which can each last from two hours to a full day. Session may be spread over weeks or months. If parents are only able to agree on certain items, they can decide the rest through a trial or another resolution method.
Since mediation proceeds faster than litigation, it's often much less expensive. Mediators' fees might be calculated by the hour (often $100 to $450 an hour per parent) or by the session (often $400 to $2,500 per parent for a full day). Dallas County offers free mediation for people who qualify. When parents bring lawyers to mediation, each pays their own.
Besides cost, the biggest advantage of mediation may be control. This way, parents don't have to put their children's fate into a judge's hands. The result is not only a parenting plan tailored to the family's needs, but often a better co-parenting relationship as well.
Another advantage is that all discussions are confidential, unlike statements given in a courtroom. Even in mediation, though, documents filed with the court are generally public record. And mediators must report certain information to authorities, such as threats and revelations of abuse or neglect.
Because of its benefits, many Texas courts require parents to try mediation before going to trial. If court-ordered mediation is successful, the parents file a settlement, bringing their case to an end. If they don't reach agreement, they continue through the court process.
Make sure to choose a mediator who is trained in family law matters. Some mediators further specialize in areas that may help them better understand your situation, such as Christian mediation or LGBTQ mediation.
Whether you're using it as an alternative to litigation or as a step before trial, make sure to prepare thoroughly before mediation.
In collaborative law, parents work toward a settlement with support from a team of professionals. The process is similar to mediation but offers additional help, making it ideal for bigger or more complex disputes.
In the collaborative process, each parent hires their own collaborative attorney trained to help parties agree on solutions. The parents and their attorneys form the base of the collaborative team.
The rest of the team is made up of professionals who work with both parents neutrally. A financial professional helps the parents assess their assets, and a mental health professional helps them develop a parenting plan and possession schedule. Optionally, a child specialist can serve as a representative for the children, sharing the children's views with the team.
The team meets for four or five conferences, discussing the pros and cons of potential solutions to the parents' disagreements. The parents always have final say.
Each conference is dedicated to specific topics:
- 1st conference = Immediate issues and goal-setting
- 2nd conference = Finances
- 3rd conference = Parenting plan and possession schedule
- Additional conferences = Any points that still need negotiating
Collaborative law is a voluntary process and cannot be ordered by a court. The entire team signs a contract committing to resolve the family's issues outside of court.
Parents often reach agreement in six months to a year of collaboration. At that point, their lawyers file a proposed order with the court, and it's turned into a final order (as long as it's in the best interest of the children).
In rare cases, parents can't agree, so they cancel their collaboration contract and go to court over the disputes that remain. Then all members of the collaborative team must withdraw, and the parents have to find new lawyers in order to keep the collaborative process confidential.
Potential benefits of using collaborative law to decide conservatorship, possession and access include:
- Transparency: The parties agrees not to withhold information.
- Speed: Decisions can be made quickly when everyone meets in one room and there's no waiting for court dates.
- Cost savings: Although each team member is paid by the hour, collaboration costs about 25 percent less than a litigated divorce, on average. That's because faster progress means fewer billable hours. (It is, however, more expensive than mediation.)
- Privacy: Discussions are confidential (except threats and revelations of abuse, neglect, abandonment, exploitation or plans to commit/conceal a crime). Documents filed with the court are still public.
- Control: You make your own decisions instead of a judge or jury doing it.
- Family consensus: When parents reach decisions together, they often have a better co-parenting relationship.
- Expanded focus: You can include anything in your collaboration agreement, whereas judges are limited in what they can order. For example, parents often agree to put money into a college fund for their child, which a judge could not order without parental agreement.
After settling their case through collaboration, parents often hire the collaborative mental health professional to serve as a parenting coordinator and help them through any future disputes.
Arbitrators make impartial decisions to settle disputes.
By presenting evidence, parents (or their lawyers, which are highly recommended) try to persuade the arbitrator or panel of arbitrators to rule a certain way. The private process is similar to a trial but happens outside of court.
An arbitration decision can be binding or nonbinding.
If the parents agree in advance to binding arbitration, their court will issue an order that reflects the arbitrator's ruling, making it legally enforceable. To ask the court not to affirm the arbitrator's ruling, a parent would have to show how the ruling could harm the child.
In nonbinding arbitration, parents can choose together to submit the arbitrator's decision to a court to make it legally enforceable. Otherwise, the ruling just guides the parents in their negotiations by showing them how a trial might end.
Both parties must agree to arbitration. They might agree:
- Before a dispute arises: Marital agreements (below) and settlement agreements often state that the parents will use arbitration for future disputes instead of trial.
- At the start of a case: The parents would ask a judge to refer their case to arbitration.
- When they begin mediation: Many mediation contracts stipulate that issues left unresolved will be decided by the mediator via binding arbitration.
Arbitration's benefits include a shorter timeline compared to trial. Preparing your evidence will take as long as it would for trial, but as soon as both sides are ready, the arbitration hearing can begin without waiting for a slot on a crowded court calendar. The hearing often lasts only a day.
Another benefit is that arbitrating is private, and the details of your case will not be available to anyone who's not directly involved.
Some religions offer their own version of arbitration. In Jewish and Islamic courts, rabbis, qadis or imams look at the facts and make decisions following their religions' laws and customs.
Commonly known as prenuptial or postnuptial agreements (depending on when they're signed), marital agreements dictate how property will be divided if a marriage ends.
These agreements can also include plans for conservatorship, possession of and access to children from a marriage. However, terms involving children will only be enforced by a court if they are in the children's best interests.
It's important to note that marital agreement is an unreliable way of deciding conservatorship, possession and access. Many times, what may have been appropriate for the children at the time of signing is no longer in their best interest when the parents separate. Because of this, judges do not regularly enforce stipulations affecting children in marital agreements.
Texas is one of a small number of states where family law cases can be heard by what have been nicknamed "private judges." In this arrangement, parents choose a judge together and pay them to rule on the case.
Private judges — technically called special judges — must remain neutral and follow all state and local statutes. They are former district judges given authority by the court to rule on a specific case.
The advantages of a private judge include:
- Sooner hearings or trial, and more say in the dates and times
- Less chance of your hearing or trial being postponed
- Control over which judge hears your case (You can choose one you trust to rule fairly.)
- Assurance you will have the same judge the entire process
- More personalized attention to your case
- Potential to stay out of public view (Public hearings are not held in courtrooms, but in a location the parents and judge agree on.)
- A less formal atmosphere
The advantage to the court system is a lightening of its caseload.
The process goes like this: After filing a case, parents ask the court to refer them to a private judge they have selected. The parents sign a contract with the private judge, and a court order gives him or her nearly all the powers of a district judge until a final decision is made in the case.
The parents present evidence to the judge as usual, and the judge's decision is binding, as if it were issued by a district judge. The parents cannot change judges except for certain reasons, like conflict of interest. A parent can appeal a private judge's decision in a Texas Court of Appeals.
Private judges usually charge hourly rates slightly higher than those of family lawyers in the area. Parents must also pay the court reporter, lawyers they hire (recommended) and any administrative fees. Initially, the parents decide how to split costs, but the judge can order a redistribution. No public funds can be used.
One of the few things a private judge cannot do is hold a jury trial. If you decide to use a private judge, you must waive your right to a trial by jury.
Remember that a private judge is no less serious or more lenient than a traditional judge, and make sure to prepare for court accordingly.
If parents are able to negotiate, they may be able to agree to a parenting plan and schedule on their own or through discussions lead by lawyers.
If the agreement follows state guidelines for child support and includes the standard possession order, a judge is very likely to issue a final order reflecting its terms. If the parents have agreed to deviate from either of these standard elements, the court might not grant the order until the parents have attended mediation (details above).
The settlement process can be difficult to navigate on your own. If you don't have an attorney representing you, you should at least should have a legal professional review your documents.
Preparing for alternative dispute resolution
Preparation is as important when you decide conservatorship through an alternative method as when you decide it in a courtroom.
You'll still be trying to convince someone — the other parent, an arbitrator or a private judge.
A proposed parenting plan with a possession 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 possession calendars, parent-to-parent messaging, a parenting journal and an expense tracker, Custody X Change prepares you for any method of deciding conservatorship in Texas.
It empowers you to get what's best for your child.
Visualize your schedule. Get a written parenting plan. Calculate your parenting time.