Child Custody Problems – Should I Use a Divorce Attorney or a Mediator?

Child Custody Problems –  Should I Use a Divorce Attorney or a Mediator?

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When families break apart in a divorce, many parents do not know where to turn to get help.  Divorce lawyer?  Divorce mediator?  What is best when it comes to planning for children when their parents are getting a divorce? Here is some information to help you choose what route to take:

Parents must decide whether they want the fate of their children’s upbringing to be made within the family unit (by mom and dad) or by a judge.

A quick read of the following comparative descriptions of the child custody decision-making process, as managed by divorce lawyers (litigation), versus divorce mediators, will help parents decide which method is best:

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Whether or not a child custody case is ultimately bound for court, it is common for divorce attorneys to approach their cases as if they might end up before a judge.  Clients should expect this type of behavior considering a legal advocate is obligated to “zealously assert the client’s position” and, as a negotiator, a divorce attorney is expected to “seek a result advantageous to the client [who is the parent, not the child]” (see the Preamble to the Virginia State Bar Rules of Professional Conduct)

Do you need Zealous Advocacy? Zealous advocacy – often referred to in terms of “winning and losing a battle” -- is frequently the best route to take in extreme cases, such as where there are allegations of child abuse and neglect. Many parents find, however, that this approach is far too absolute when applied to the very human business of making decisions with regard to their children’s upbringing.  Also, you need to be careful in traditional litigation since it has a tendency to further polarize parents who are often already struggling with divergent value systems and parenting styles.

The courthouse was not designed for most divorcing family’s child-related problems.  But, it’s good to know that the courts are there if you need them.  The fact that so many custody battles are aggressive in nature is not, necessarily, the fault of the individual attorneys. Instead, this problem is more of a manifestation of an entire judicial system which was better designed – back when divorce was a rarity -- for matters of business and property disputes than those of families and children.

Knowing what we know today about the emotional development of children, the court system is outmoded and, often times, inappropriate for the needs of divorcing families and their children.  However, for those dire situations, such as child abuse and neglect, where compromise and co-parenting are out of the question, having a neutral, authoritative judge as the decision-maker can be in everyone’s best interest.

Is Compromise an Option? Many clients find that approaching child-related decision-making with a “win-lose” mentality is expensive, confusing and rarely geared toward supporting a cooperative environment.  If you think you are ready to compromise (even a little) and are interested in your child being raised by both of his or her parents, cooperatively, you may want to steer clear of traditional litigation. Instead, consider using your energy on making plans for how to best raise your child in two separate homes (which is never easy in the best of circumstances).  

Wife with kids under a split roof with husband

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Litigation might be your best bet in a child custody situation if:

(1) You absolutely do not see the possibility of compromise in your case; and/or

(2) Your child would be unsafe if left in the unsupervised care of the other parent.


Working with a mediator, in a child custody situation, is all about cooperative planning for your child’s immediate and future needs. This planning is usually done with both parents in the same room and, during certain segments of the mediation, the mediator will talk with the parents separately.

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Mediation has four parts:  

(1) Pinpointing Issues;

(2) Sharing Information (the parties share information about their child and their own personal situation, as well as some family history; the mediator shares information about the law, the legal culture in the jurisdiction, and the impact of divorce on children, generally, and in various custody situations);

(3) Facilitated Negotiation; and

(4) Drafting and Signing the Custody Agreement.

When is Mediation a Good Idea in a Child Custody Situation? Mediators are able to help clients settle their child custody disputes if:

    • Both parents love their children and are able to appreciate that what happens in childhood will have a lifelong impact on their child;
    • There is no history of child abuse or neglect;
    • Both parents are committed to the idea that their child’s life should be  better after divorce than it was during the marriage (if at all possible); and
    • The parents are willing to sit down with a neutral third party (the mediator) and work on creative, practical and child-centered plans for their child’s upbringing.



The immediate goal in divorce mediation is to assist parents in making rational, child-centered, and logistically feasible parenting arrangements for their child after considering the full circumstances of all members of the family.

The ultimate goal is to help couples transition gracefully from traditional parents (if married) to single moms and dads who are able to provide their child with the best dual-home situation possible for their child to grow, learn and play before he or she is old enough to leave the nest.   

Only you can decide what is best for your child when your family is faced with divorce and custody situations.  

Got questions?  Call: Robin Graine, JD at (571) 220-1998.  I’m always happy to answer questions and help you get on the right track toward moving on with your life and creating the best situation for your child post divorce.

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