A Judge’s Guide

MANAGING THE CHILD CUSTODY CASE
Most researchers -- especially those who study the effects of divorce
on children -- believe passionately that using the court to resolve
custody issues is a mistake in all but a few cases. It is far better, in
the opinion of these researchers, for parents to negotiate their own
parenting agreements, with the help of outside experts such as
mediators, counselors, and lawyers on an as-needed basis. 92
It is debated as to whether mediation should be mandated, since by definition
mediation is a process that is non-coercive, one whereby parties attempt to
cooperate with one another and voluntarily enter into an agreement. After
reviewing the literature, one commentator found “that there is a need for
empirically sound methods for discriminating between couples who are ready for
mediation and those who are not.” 93 It is generally not recommended that
mediation be used in cases involving allegations of domestic violence “as it may
place women and children at risk for ongoing intimidation.” 94 In cases in which
children are at risk for harm and parents cannot agree on how to reduce that risk,
judicial intervention is fitting. 95 Moreover, some believe that only parties
represented by counsel should engage in mediation given the potential for unequal
bargaining power, especially in cases in which parties are not well-educated or may
have developmental or mental disabilities.
The RESOURCE GUIDELINES provide guidance for the development of
mediation programs, including the following suggestions:
• Mediation programs “should be court-based or court-supervised
and have strong judicial and interdisciplinary support.”
• Mediation should be confidential.
• Agreements should be specific and be made part of the court
record.
• “Mediators must be highly trained, experienced and skilled
professionals, have credibility with the court and related
professionals, and be perceived by family members as being neutral
and having the best interests of the child and family at heart.”
Use of Special Masters
Several jurisdictions have begun to employ specially qualified individuals, e.g.,
special masters and custody commissioners, to facilitate the resolution of certain
types of post-divorce high conflict cases. 96 These cases include ones in which
parties continuously disagree about parenting issues, appear in court frequently,
and cannot resolve disputes through typical mediation processes. 97 These cases
also may encompass those in which issues of parental fitness require ongoing
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