Alternative Ways to Decide Custody in New York

Often, when people think of a child custody dispute, their minds go straight to a courtroom complete with lawyers and a judge. While traditional litigation is one way to decide custody, other options are growing in popularity. See if one of the following alternatives might work for you.

Custody X Change is software that creates parenting plans for traditional and alternative methods of deciding custody.

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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:

  • Calm environment: Parents communicate in a non-combative environment, which can lead to more amicable co-parenting.
  • Control: Parents speak for themselves, rather than have an attorney speak for them. (While parties 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.

Children older than 12 can participate in the process through child-inclusive mediation, which involves a family specialist who 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.

Mediators may check in annually to make sure each parent has held up their part of the agreement. Parents can return to mediation at any time to modify their agreement or discuss conflicts.

Collaborative law

Collaborative law brings parents, their attorneys, 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 attorneys.

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

Then the team and parents meet 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 your family's schedule, proof of income, statements of assets and debt, and other documents to support negotiations.

After each session, the attorneys debrief with their clients and the collaborative team separately.

Collaborative attorneys usually charge hourly, but some charge per session. Generally, collaboration costs 10 to 20 percent the attorney fees of litigation because it is a shorter process. Parents can agree to any method of splitting the costs, which is an issue to be negotiated at the outset.

Parents can modify the parenting plan with the collaborative team in the future if necessary.

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, but sometimes get involved earlier to help create a parenting plan.

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 that:

  • Privacy: Parents can meet separately with the PC if they'd rather not interact with each other.
  • Proactivity: It helps solve even little disputes without putting the child in the middle.
  • Flexibility: Sessions are held on an as-needed basis.

The coordinator seeks to understand each parent's point of view, then helps brainstorm solutions. If the parents can't agree, the PC makes the final decision. However, a PC's goal is to bring parents to an agreement whenever possible.

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. Arbitration is rarely pursued in divorce, and is even less common for standalone custody cases.

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

In the United States, 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 your case.

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

Custody is less commonly pursued through arbitration than divorce because either party can request a trial if they do not 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 children as standard. In Judaism, physical custody of a child over six years old typically goes to the parent of the same sex.

If you're interested in religious arbitration, start by speaking to an attorney who has knowledge of 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 the help of a neutral professional. They might reach an agreement on their own or with attorneys 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 stall proceedings or cause problems down the road. Additionally, the Custody X Change app and self-help websites and resources from your local court will help with the process, which can be complex.

Tips for alternative dispute resolution
  • Be respectful.
  • Use "I" instead of "you" statements.
  • Avoid using destructive language.
  • Be mindful of how conflict can harm your child.
  • Think of your parenting agreement as a compromise.
  • Keep an open mind.
  • Speak up if you have questions or concerns.
  • Do not view the other parent as an enemy. Think about how your child sees him or her.
  • Listen to the other parent's concerns.
Preparing for alternative dispute resolution

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

Unless you and the other parent agree on all aspects of custody and visitation, you will be trying to convince someone — the other parent, a parenting coordinator or an arbitrator.

A parenting plan and schedule are great starts. You may also need to track the time you spend with your child, keep a log about interactions with the other parent, calculate who pays the child's expenses, and more.

The Custody X Change app enables you to do everything in one place. With a parenting plan template, custody calendars, a journal, an expenses tracker and beyond, Custody X Change makes sure you're prepared for any method of deciding custody in New York. It makes sure you're prepared to get what's best for your child.

Custody X Change is software that creates parenting plans for traditional and alternative methods of deciding custody.

Make My New York Plan Now

Custody X Change is software that creates parenting plans for traditional and alternative methods of deciding custody.

Make My Plan