When parents divorce, child custody is often one of the most contentious issues. You both love your children and want what is best for them, but you have different opinions on what that looks like in real life. You both want as much time with your children as possible, yet you know one of you may end up with more time than the other.
You do not want to give up your right to be involved in decisions about your children. You also know it is unrealistic to expect your former spouse to consult you on what they make for dinner or what color socks your child wears to school.
When dealing with custody issues like these, many couples believe their only option is to bring the issues to a judge and let the court decide. However, mediation can be another option. Divorce mediation can help parents resolve child custody disputes in Colorado without letting a judge decide or spending a fortune on litigation.
An experienced divorce attorney with Johnson Law Group may be able to help you find a mediator and resolve your divorce disputes more amicably. Call 720-868-5868 to schedule a consultation.
What Is Divorce Mediation?
Divorce mediation in Colorado is a simpler and more amicable approach to ending a marriage. Mediation takes a collaborative, solution-oriented approach that lets divorcing spouses create their own agreements on big issues without going to court. With divorce mediation, couples can work through tough issues such as property division, spousal maintenance, and child custody.
Divorce mediation allows divorcing spouses to maintain their dignity and respect while using a personalized problem-solving process. This sets the parties up for good decision-making going forward and helps everyone take care of their own well-being and the well-being of the children involved. Mediation is often less expensive and faster than taking every issue to a contested hearing.
Steps Involved in Divorce Mediation
Even if an individual has never been to court, they are often familiar with the process from television, movies, or friends and family who have been through it. They understand that they file paperwork, wait for a court date, appear in court, plead their case, and wait for a judge to decide.
Divorce mediation tends to be a less familiar process for most people. Some people may never have heard of it until a divorce attorney, friend, or relative suggests it. Fortunately, divorce mediation is a fairly straightforward process.
Agree to Divorce Mediation
Some divorcing parents are ordered to go through divorce mediation by the court, such as those whose divorce is in Denver County. In these instances, mediation is not optional. When it is not ordered by the court, divorcing couples can choose to attend divorce mediation themselves.
If only one party agrees, divorce mediation is unlikely to be effective, even if both parties attend. A willing party may try to persuade the other by pointing out that mediation is less stressful, less expensive, and more efficient, and can lead to a more lasting resolution.
Choose a Mediator
Once the court orders divorce mediation or the divorcing couple has agreed to attend, the next step is to choose a mediator. The Colorado Judicial Branch’s A Party’s Guide to Colorado Court-Ordered Mediation offers information about mediation and mediators, including questions to ask a mediator and ways to find one.
Parties should look for mediators who are competent, support both parties, and encourage collaboration. Mediators should also be experienced in divorce law and understand Colorado’s divorce and mediation processes.
Whenever possible, both parties should agree on who their mediator will be. Otherwise, the party who did not like the mediator may later say they felt forced to agree or that the mediator was unfair.
Prepare for the Initial Meeting
While mediation may require multiple sessions, the initial meeting often requires more preparation than later meetings. Parties can make the first meeting more productive by taking care of certain things in advance, such as filling out any required paperwork. They can also work on a collaborative mindset rather than a competitive one, so they are willing to compromise rather than fight to win.
Individuals should also be prepared to speak openly about the issues in mediation, including asset division, child custody, and other matters not yet agreed upon. While it may feel uncomfortable to speak so openly about personal matters, the more transparent individuals are, the more easily the mediator can guide the discussion toward resolution.
Colorado law generally keeps mediation communications confidential, with limited exceptions, such as reports of child abuse or threats of harm. Ask your mediator to explain the exceptions before you begin.
In our experience, the parties often meet with the mediator in separate rooms and are rarely in the same space as each other. That is one reason we recommend having an attorney guide you through mediation.
Attend All Mediation Meetings
Divorce mediation is intended as a collaborative process, in which the two divorcing individuals work together to find solutions to their issues, including custody issues. Even with the best of intentions, sometimes these meetings will be unproductive, frustrating, or simply not go well. However, it is still important to attend all sessions.
These sessions allow both parties to share perspectives, voice their needs, and envision outcomes for the issues in dispute. Success requires both parties to be respectful, transparent, and present at every session. Even if the last session did not go well, they should attend the next one with the same good intentions and willingness to find solutions.
Draft and Review the Agreement
If mediation is successful, the divorcing couple can work out an agreement on their custody issues and any other issues in dispute. The terms they agree to are then written into a document called a Memorandum of Understanding.
Whether it is binding depends on its terms and how it is signed. A signed written agreement can be presented to the court and, once approved, enforced as an order.
Colorado does not legally require the parties to have a lawyer review this document, but they can choose to have their lawyer review it. This review may draw attention to red flags that might cause a judge to refuse to incorporate the terms into the final decree.
When drafting this agreement and having an attorney review it, parents should remember that the court will measure it against the best interests of the child under C.R.S. § 14-10-124.
Use Agreement to Fill Out Legal Documents
Once the couple has a Memorandum of Understanding, they use it to prepare a Marital Settlement Agreement (MSA) or Separation Agreement, along with a Colorado parenting plan. These documents are more formal and detailed than the Memorandum of Understanding. The MSA or Separation Agreement becomes legally binding once it is incorporated into the divorce decree.
As with the Memorandum of Understanding, there is no legal requirement to have a divorce attorney review these documents. However, because they will be incorporated into the final decree, it is crucial that they are free of errors and accurately reflect what each parent agreed to. If you have an MSA or Separation Agreement you would like reviewed, a divorce attorney with Johnson Law Group may be able to help.
Finalize the Divorce Decree and Get Court Approval
Once the MSA or Separation Agreement has been created and reviewed, it is ready to be incorporated into the decree that ends the Colorado divorce process. The parties, or their attorneys, then file the signed agreement and proposed decree with the court for approval.
Once the judge reviews the decree, if all is in order, the decree will be approved. A final divorce decree is then issued and the divorce is officially complete.
Seek Mediation Support As Needed in the Future
While not required, many divorced parents choose to return to mediation in the future. As their children grow and circumstances change, parents often discover they need to modify earlier arrangements to meet their children’s changing needs. As new custody issues arise, mediation can help parents keep making thoughtful decisions that are best for their children.
Tips for a Better Mediation Experience
Mediation is usually less stressful than taking custody issues to trial, but there are still things you can do to prepare and have a better experience. Using the tips below that fit their case can help create a less emotionally charged and more positive experience.
Use Inclusive Language
Parents fighting for what they believe is best often slip into self-regarding language like “my children,” which comes across as confrontational. That language can push the other parent to dig in on what they want, which may or may not be what is best for the children. Instead, try to use inclusive language like “our children” to show respect for the other parent’s role in the children’s lives.
Focus on Working Together
Divorce can make parents feel like enemies on opposite sides of a war. However, it is best for the children if the parents can work together to co-parent. Instead of focusing on getting everything they want, parents should look for where they already agree and build from there toward a complete agreement on custody issues.
Focus on Your Children and Promoting Their Well-Being
In addition to working together, parents should focus their negotiations on their children and what promotes the children’s well-being. This can be difficult, particularly when a parent wants one thing but knows another is in their child’s best interests. If parents can keep the focus on their children’s well-being, the children will be better off, and the parents often will be too.
Be Open to Compromise
Parents in divorce mediation for custody issues need to be open to compromise. Whether through mediation or a judge’s decision, it is very likely that parents will have to give up at least one thing to resolve their custody disputes. Instead of focusing on what they are giving up, parents should look for common ground, build on it, and explore creative solutions.
Listen Actively
Many people listen only to reply, looking for ways to challenge what the other person said. Active listening means listening closely to understand the other person’s perspective, thoughts, and feelings. When both parties listen this way, the other person feels heard, and solutions often come more easily.
Consider the Long-Term Implications
Children grow and their needs change, so what is best for them now may not be best in a year or in five years. Parents should consider the long-term implications of the decisions they make in mediation for their children, themselves, and their former spouse.
That means being open to changing the arrangements if needed and listening to their children’s preferences once the children are old and mature enough to express them. It also means not creating agreements so rigid that there is no room to change things later.
Keep Your Emotions in Check
Parents love their children, and when they are fighting for what they believe is best, emotions can become overwhelming. Mediation goes much better when parents keep their emotions under control and stick to facts as much as possible. If emotions start to run high, ask for a brief break, take some deep breaths, and come back ready to negotiate with facts and logic.
Be Prepared With All Relevant Documents
Children’s medical, school, or other records may be relevant to custody requests. If domestic abuse, substance or alcohol abuse, or criminal activity will be raised, police reports, financial statements, criminal records, or other documentation of those issues will help. Parents may also want to consult an attorney about what other documents to gather before the first session.
Be Confident in What You Believe Is Best for Your Children
While compromise is a large part of divorce mediation, parents should never agree to an outcome they truly do not believe is in their child’s best interests. While they may ultimately need to compromise, it is also important to know when an issue is too critical to give up.
Present a Logical Case With Facts to Back It Up
While a parent may want to say “because I want them” or “because I love them,” those reasons alone are not enough to be granted custody. Parents need a logical case backed by facts, such as showing they can provide a stable home or are well suited to the arrangement they are requesting. School records, witness statements, and other evidence can support those claims.
Stay Calm and Provide Proof If Other Parent Is Dishonest
One of the most frustrating things a parent may face is a former spouse who is dishonest with the mediator, particularly if the mediator believes them. The best response is to remain calm and provide proof of the dishonesty. Sometimes the evidence is on hand; other times, the honest parent should gather it and open the next session by addressing the issue with that evidence.
Avoid Disparaging and Personally Attacking the Other Parent
Some couples remain friends after divorce, and others clearly no longer like each other. Either way, they are still co-parents and must find a way to raise their children together. That means no disparaging remarks or personal attacks, and no negative claims about the other parent unless they relate directly to the custody issues and the facts back them up.
Prepare a Relationship Timeline
A timeline of the couple’s relationship, including when they met, married, had children, attended counseling, and separated, can be useful. It cuts down on arguments over dates and gives the mediator basic information without spending session time on it.
Prepare a Parenting Timeline
A parenting timeline showing the arrangement since the couple separated can also help with custody issues. It can show who has been the primary caregiver, how much time the other parent has spent with the children, and details such as missed visits. Including extended family members, where they live, and their involvement can also show the support system around the children.
List Your Reasons for Custody Requests
Colorado has no presumption for or against shared decision-making; the court allocates parental responsibilities based on the child’s best interests. If a parent is requesting individual decision-making or a primary residence, they should be prepared with a list of reasons to support the request. That list can help in mediation and may also matter when the agreement goes to the judge for approval.
What About Access & Visitation Mediation?
Colorado also has Access & Visitation mediation, which helps parents with parenting time issues. Federal Access & Visitation grant funding helps noncustodial parents increase their parenting time. In Colorado, individual judicial districts and child support offices apply for that funding and run the programs, so availability and eligibility vary; ask your district or child support office.
Parents do not need to use the Access & Visitation program to focus their mediation on custody issues. If custody is the only issue in dispute, or if the parents want to handle custody separately from other issues, they can simply tell their mediator.
How a Colorado Divorce Attorney Can Assist You With Child Custody Issues
Getting divorced when you have children is a difficult and complex process. Fortunately, there are ways to reduce the complexity and make the process more efficient and easier on both parents. Divorce mediation can help couples find solutions to custody issues, asset division, and other divorce disputes.
A compassionate Colorado divorce attorney at Johnson Law Group can help with negotiation, review your Memorandum of Understanding and MSA, and help you find a skilled mediator. The attorneys on our team work with parents across the state through our Colorado offices.
Call 720-868-5868 or request a consultation to review your divorce case today.