Tag Archive for: mediation

Sometimes you don’t know whether a change in circumstances is material until after trial when the judge rules.  Perhaps this will help.  Here is a partial list, compiled from our cases over the years, of changed circumstances that courts have found, or both parents conceded, were material:

  1. One parent wants to relocate with the child.
  2. One parent is relocating without the child so the current timesharing or visitation schedule will not work.
  3. The parents share physical custody equally, live in different school districts and the child is nearing kindergarten age.
  4. One parent’s mental health has deteriorated
  5. Remarriage of one parent if it affects child-rearing.
  6. Substantial change in employment location/hours of work.
  7. A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.

If one or more of these changes are present and the current custody arrangement is no longer in your child’s best interest, it is time to seek a change. Start by communicating this to the other parent and inviting feedback.

If you don’t make progress with direct discussions, consider suggesting that you and your former spouse work with a mediator skilled in child custody matters. Custody disputes are well suited for resolution through mediation. Also, look at the dispute resolution procedures, if any, in your custody agreement.

A good family lawyer or divorce attorney experienced in custody matters will be helpful to you throughout this process and will be essential if you bring your custody matter to the court for resolution.

“The kids need haircuts!” were the first words Michael said when he walked into the library conference room for the mediation with his lawyer.

“I’d get them one if you would pay some child support!” shot back Sandy, his estranged wife, who was already seated in the conference room with her lawyer.

Before the exchange could heat up any more, retired Judge O’Malley, dressed nattily in a tweed sport coat, looked up from his papers at the head of the conference table and peered over his reading glasses.

“Let me give both of you a tip,” he said in his slow, quiet voice that demanded attention.  “The court doesn’t like hysterical, angry witnesses.  If it’s a close call, and one party is hysterical and emotional and the other one is calm and rational, the judge is usually going to go with the one that’s calm.”


When clients talk to me about divorce, their focus is usually on the substance, that is, the decisions that have to be made on issues like legal and physical custody of their children, child support, alimony, and how to divide their property.  It is, of course, critically important to make thoughtful and reasonable decisions on these topics.  If both parties can make them together, a judge won’t have to make them instead.  But what is the process for making these reasonable and thoughtful decisions?


  • Litigation. If you go to a lawyer, the idea may naturally be that you will litigate your divorce.  This means filing a complaint in court, going through all the procedures for discovery to find out what your spouse earns, spends, owns, and owes, and finally providing all that information to a judge, who makes the decisions.  However, there are other processes that people don’t always consider.
  • Mediation. Mediation is a process in which both parties sit down with a neutral mediator who facilitates their discussion.  If they reach an agreement, the mediator may draft an agreement for them, or they may ask one lawyer to draft the agreement and one to review it.  Then their agreement forms the basic guidelines that they will be governed by post-divorce.
  • Collaborative Law. Another process is collaborative law, in which both parties have lawyers and everyone agrees to engage in problem-solving, rather than in litigation.  They may also choose to have a financial neutral, who helps figure out the best financial options for the family, or psychologists who act as coaches to help them manage their emotions during a trying time, or a child specialist to assist them in making decisions for their children.


These three processes, litigation, mediation, and collaboration, are all accepted by the legal system.  How do you choose?  Well, your choice will depend on several factors.  Your spouse’s willingness to engage in mediation or collaboration is fundamental, so if your spouse is determined to litigate, you can’t force another process.  Your finances may impact your decision.  But one element that influences your decision, often without being explicitly stated, is your own value system.  Are you naturally a fighter, and do you believe that divorce is a battle to be won?  Are you naturally a peacemaker, and do you believe in the possibility of cooperation and healing?  And if you are a little bit of both, what process will best help you build a foundation for your future?  Thinking about your values and hopes is important in divorce.  You can’t control how your spouse feels, but you can stay aware of the values that drive your own decisions and try to have a divorce that is consistent with who you are.

Every once in a while, I get to use the word pettifogger in a letter. A pettifogger is someone who likes to bicker or quibble over trifles or unimportant matters.

I was responding to one of those lawyers who is dead right on the law, but dead wrong on being sensible.  In the middle of mediation his client has taken a small and unnecessary action that is permitted by law, but which will torpedo the good faith environment required for successful conflict resolution.

Now I am looking for a chance to use flibbertigibbet, which means a chattering or flighty, light headed person or gossip.