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Child Custody - Mediation

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Child custody- the term conjures the clarion call of war.  The "custody battle" creates the metaphor of family vs. family in a bitter fight  to determine who will cause the most hurt from one another.  Child Custody litigation brings issues to the forefront within the family dynamic that constitute the pain, the emotion, and the gut wrenching entanglement that permeates the depths of the inner soul. Child custody litigation is not for the faint at heart.

I am a practicing attorney in the child custody litigation realm.  Child Custody litigation requires that attorneys exemplify endurance, compassion, and an indepth understanding of human nature. 

As an attorney and trail lawyer in this area, I will continue writing a series of articles in the child support litigation category Many factors go into the decision whether to begin child custody litigation.  Illinois law provides for different variations  of custody.  Illinois provides for joint custody, but within joint custody,  there is the separation of the residential parent and the non residential parent.  This means that someone will be designated as the residential parent, and that is the place that the child will spend most of her time. 

The non residential parent  typically pays child support to the non residential parent.  However, both parents may have joint custody at law.  Joint custody provides that the parents must agree and consult one another in the three areas at law; (a) health and access to health care; (b) religion and decisions related to religious education,  and (c) education, which covers where the child will attend school, and access to the child's records.    

One of the primary issues related to child custody litigation is whether to petition the Court to appoint a Guardian Ad Litem (GAL).  The GAL brings many factors into the litigation, but allows for the opportunity of a third party to independently review the specific homes, and to help make the appropriate recommendation before the Judge, as to the appropriateness of  which home shall have custody of the child.

Often litigants overlook the benefits and the disadvantages related specifically to the conciliation and mediation aspects of  Illinois law.  The legislature codified the mediation  statute at 750 ILCS 5/404, which  states in pertinent part,

(a) If the court concludes that there is a prospect of reconciliation, the court, at the request of either party, or on its own motion, may order a conciliation conference. The conciliation conference and counseling shall take place at the established court conciliation service of that judicial district or at any similar service or facility where no court conciliation service has been established.

 

(b) The facts adduced at any conciliation conference resulting from a referral hereunder, shall not be considered in the adjudication of a pending or subsequent action, nor shall any report resulting from such conference become part of the record of the case unless the parties have stipulated in writing to the contrary." (West Publishing, 2011)."

The Court ordered conciliation, though, is very different and not to be confused  with the Mandatory form of Mediation established through Illinois Supreme Court 905.  However, the 750 ILCS 5/404 rule does provide for the opportunity for the parties to enter into a less expensive  form of custody litigation in which they might anticipate a third party to assist them to a conciliatory conclusion to their pending issues.   The 750 ILCS 5/404 provision allows for domestic relations to  be a more civil and amicable frame of collaborative divorce procedures that many have requested within the specific system of  Illinois.

The Court can provide assistance to litigants in making the child support litigation a less painful process, but the litigants have to want it.  In the experience of this specific family law trial attorney, the litigants does not want this to be a less painful process, but instead want the litigation to be most painful, medieval , tortuous form of revenge they can conjure. Often litigants require vengeance against the other party rather than the resolution of  the issues that brought the parties to the courtroom in the first place. Litigants murder the civility that should saturate civil litigation.    I  am encouraging a dialogue with others in the child custody and family litigation community. 

I specifically want to know how many people have experienced the lack of civility within the civil litigation context, and I would like to know more about people's experience within the mediation context that Illinois Supreme Court Rule 905, and the Supreme Court Rule 900 Series dictates.

Illlinois Supreme Court Rule 905 states in pertinent  part,"

"(a) Each judicial circuit shall establish a program to provide mediation for cases involving the custody of a child or visitation issues (whether or not the parties have been married). In addition to the minimum requirements set forth in subparagraph (b)(2) of Rule 99, local circuit court rules for mediation in child custody and visitation cases shall address: (i) mandatory training for mediators; (ii) limitation of the mediation program to child custody and visitation issues; (iii) (unless otherwise provided for in this article) standards to determine which child custody and visitation issues should be referred to mediation and the time for referral, and (iv) excuse from referral to mediation if the court determines an impediment to mediation exists. The immunity and approval requirements of subparagraph (b)(1) of Rule 99 shall apply to mediation programs for child custody and visitation matters." (West Publishing, 2011).

Therefore, the mediation program works towards litigants solving their questions.  Litigants must be aware of the benefits of the program.  The litigants must realize this is the point at which they should address all questions, all issues related to the problems of both parties parenting their children. The litigants must embrace the task of performing the resolution towards a parenting agreement. 

The mediation rules provide for the resolution of the parenting agreement, but litigants prevent this resolution.  The next series in this article shall provide litigants with tools on reaching this resolution, and providing for more successful and efficient litigation. 

Craig Cunningham is a published author in the areas of family and criminal law.  In addition to being an attorney, he is also a professor and will educate his clients regarding their case and the law. Clients are able to reach him through several outlets such as, email, cell phone, office line and fax. He will never keep his clients in the dark. With any new developments, he will definitely keep clients informed. For more information please visit at www.cunninghamlaw.cc

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