Which comes first…The Child Custody or The Child Support?

By Lisa S. Fine, Attorney and Mediator

The general consensus among Long Island Divorce Lawyers is that Child Support on Long Island should not be determinative in deciding Custody and Parenting Time.  In fact, it isCustody and Parenting Time that is a factor in determining Child Support, not the other way around. All too often, however, parties in an adversarial Divorce find themselves fully involved in an all out Custody battle because one party wants to pay less, and the other wants to receive more.

Some of the Courts in New York have set up programs that involve the parties being sent to mandatory Mediation in Court to work out the issue of Custody before the parties have any discussions about Support in Court. Unfortunately, this can be unrealistic for several reasons. Firstly, one of the first things that I advise participants at the initial meeting is that Mediation is a wholly voluntary process that they are free to stop at any time. Court
mandated or forced Mediation completely disregards this important principle.

Additionally, the Court mandated Mediation in a Divorce case is focused only on Custody and Visitation, and leaves the parties to return to the typical adversarial ways concerning all other issues, which can then result in the Mediation being unsuccessful.

The parties may not fully understand the financial impact of their decisions they make with respect to Custody and Visitation which is problematic. Although finances should not be determinative, parties should be fully informed before making important decisions that can have serious financial impact on their lives. For example, if a Father has a
child for half of the time, will the Court still make him pay full child support? If there is sole custody to one party, and the child is enrolled in many expensive extracurricular activities, would the non-custodial parent have to pay their share even if they had no say in the enrollment? The process of Mediation avoids these pitfalls and creates a
situation where the parties can discuss Custody and Support issues together in a rational, controlled fashion.

Mediation is a voluntary process that may not work as well in a situation where the parties are being forced to attend. For example, participants in Mediation that have chosen the process of Mediation may be more likely to embrace the process and all it has to offer. Parties who are forced into Mediation may be hesitant to open up for fear that it
may affect their strategy they worked out with their Attorney. Court mandated Mediation may find the parties reluctant rather than willing participants, making final resolution that much harder.

In my Mediation sessions, I suggest that the parties first discuss Custody and Parenting Time or Visitation before discussing financials. Once we have established an agreed upon Parenting Plan, then the parties begin to discuss Equitable Distribution and Support.

We incorporate the parties’ financial discussions into the existing Parenting Plan, and see if the formula is still manageable for the parties. This offers a more complete and global approach allowing the parties to reach resolution f all issues in conjunction with each other, without Child Support taking center stage over what is best for the children in terms of living arrangements, decision making and Parenting Time.

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As an attorney for over fourteen years, one of the most important things I have learned is that if a case can settle out of court, it should.

Divorce mediation accomplishes this goal by allowing participants to settle all aspects of their divorce or custody matter without ever setting foot in a court building, or appearing before a judge.

How does divorce mediation work? Mediation involves meetings where both parties (husband and wife) meet with the mediator and have, quite simply, conversations about what they want and what they need. Then we discuss how to make that happen. The mediator’s job is to make sure that the parties stay on track, cover all issues, such as custody, visitation, support and equitable distribution, keep the discussion productive and advise the participants as to the applicable law.

Participants come out of the process with a more detailed, often more creative agreement than they would get if they were each represented by counsel in a court action. Mostly this is because the participants in a mediated divorce have a say as to what goes into the agreement, and their needs, and the needs of the children, if any, come first. Also, the participants in mediation are not pressured because of pending court dates or trials, or bullied by posturing attorneys. More importantly, I have found that the participants in a mediated divorce have an easier time co-parenting after the divorce. They become used to talking out their issues, and continue to use these skills to make important decisions for their children. They can actually stand to be in the same room for special events, like graduations and birthdays.

Perhaps the most compelling reason that so many divorcing couples are turning to mediation is cost. Mediation is usually much less expensive than the adversarial process. In fact, in mediation, the parties are paying only one person to assist in their divorce, rather than each paying a separate attorney. Additionally, they are paying for the mediator for the time the mediator is actually working on their matter, rather than paying their separate attorneys to sit in court all day to wait and see a judge. Also, participants in a mediated divorce do not have to pay for expensive experts such as forensic accountants, psychologists or real estate experts unless they both choose to do so.

After the divorce is mediated, an agreement is drawn up based on the terms they have agreed to during the mediation and the participants can then move forward with an uncontested divorce or separation. Their rights are protected, their wallets are not empty, and they usually do not part enemies as is often the case in the adversary process.

Of course, there is nothing in my mediation agreements that prevent the participants from conferring with outside counsel during the mediation process. In fact, in every mediation, I highly recommend to the participants that they have their settlement agreement reviewed by independent counsel of their choosing. My goal as mediator is to assist the participants in reaching a fair agreement, to make sure they understand their agreement, and to make the process easy on the participants. Divorce is hard enough.

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Wasting Time and Money in Court.

One day, an attorney I know was sitting in a divorce courtroom for two hours waiting for her adversary to show up for 9:30 a.m. status conference before the judge.  She recalled the conversation she’d had with the attorney’s secretary the night before when she was assured he would be there promptly at 9:30.

Question: Who bore the brunt of his finally strolling in at 11:30?

Answer:  Her client.

When an attorney has to sit in court waiting for an adversary, or for a case to be called, that attorney has to be away from the office, and not working on other matters.  Therefore, attorneys bill their clients for the entire time that is spent in the courtroom, even if only precious little of it was when the attorney was actually engaged in activity related to the actual case.  So my colleague’s client was paying her for two and a half hours of her time, most of which was spent sitting doing nothing in the courtroom, through no fault of her own.

To add insult to injury, in a tough economy, the litigants (ie. Husband and Wife) must also appear, most of the time, at conferences in their divorce actions.  They must take off time from work, and shuck their daytime responsibilities to sit in a courtroom waiting for their case to be called.  Often they are losing pay or vacation time at work, or, in the case of the self employed, they are losing their company money but not working.  There can be numerous appearances, depending on the complexity of the case and animosity of the litigants.  If motions are filed requiring court appearances, this can only make matters worse as attorneys and litigants are forced to sit in the courtroom during regularly scheduled cases and hope that the judge can squeeze their matter in before lunch.  The system, as it is, is not a cost nor time efficient model, but it is what is in place to obtain a divorce in New York.

This is why mediation can be such a money saving venture.  The participants only pay for the time the mediator is actually engaged actively working on their matter.  There is no wasted time, and therefore no wasted money.  The mediator is participating in the matter by attending a mediation meeting with the participants, or is actively drafting documents that will be used to obtain the divorce, such as a Settlement Agreement or Judgment of Divorce.

Lisa S. Fine, Esq.

Attorney and Mediator

Visit the rest of Lisa ‘s website for more information on why mediation is best, at www.mediationisbest.com

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