Think twice about Court-involved strategies to resolve child custody and access disputes.
Original article by Gary Direnfeld (Canadian social worker)
If you can’t settle your parenting plan and turn to an assessment to inform the Court as to the best interest of your children and related child custody issues, consider the following:
- Typically more than 95% of contested child custody and access disputes are settled prior to a Judge making a final order.
If, however, an assessment is entered into at court, the Judge will make an order consistent with the assessor’s recommendations some 80% of the time. The remaining 20% is not that the Judge differs from the assessor and comes in with something quite different. That is actually a rare event. In the remaining 20% of the time, the Judge may modify the assessor’s recommendations. For instance, instead of seeing one’s children Tuesday, maybe the Judge will say Wednesday. Instead of a return time of 7:00 pm, maybe the Judge will say 7:30 pm.
- In addition, those outcomes which are imposed by the Judge are less likely to be followed than those outcomes that are reached by mutual agreement, even if both parties aren’t satisfied with the mutual agreement. Here’s why:
If one parent considers him or herself to have won, that parent goes “ya-hoo”, whereas the parent considered losing, goes “boo-hoo”. The loser will next be looking to “revenge” their perceived wrong. This can be achieved by passive aggressive behaviour, being late, not following Orders to the letter, etc., or by stock-piling issues with the “winning” parent to return matters to Court at a later date. However, when parents agree to the outcome, even if both are not 100% happy, then they “own” the agreement and hence are more prone to abide by it.
Mr Direnfeld goes on to say that in Ontario (typical of many jurisdictions), the Court process tries to encourage parents to reach an agreement between them. That is why there are a number of conferences (meetings) in advance of a trial and why at those conferences, a Judge will advise on likely outcomes and ask parents to try to resolve things either with the help of their lawyers or through mediation.
So, while a Court action may have been started, you still have options – it doesn’t mean you are stuck with it; it also doesn’t mean that it is a good option for resolving your child custody dispute and finally, it doesn’t mean that your dispute won’t be resolved anyway prior to a trial or conclusion of a trial.
Parents – please work hard to resolve things between yourselves. If you have had an assessment, know that it is likely to be very influential over the final outcome, even if you think you know more than the assessor, or if you think you have a tough lawyer. Giving the assessor a rough ride on the witness stand still won’t mean, from a statistical perspective, that the Judge will make an Order very different from what has been recommended. Furthermore, even if the Judge does make an Order in favour of your position, don’t think that will be the end of your conflict. In many cases it is only the propellant to fuel more conflict.
If you want an agreement more likely to last and where you have some say or control in terms of the outcome, find a way to settle outside of Court.
Those strategies include:
- Lawyer-assisted negotiation (assuming you have lawyers who are genuinely settlement-focused).
In the end, there may be no such thing as a perfect settlement. However, if you reach an agreement that brings some semblance of peace that you both can live with, then your children are better off and you all can get on with life. Indeed, that just may be what a good settlement is all about.