Eenie, Meenie, Miney, Moe…to which school, will I go? Custody Disputes and the Choice of Schools – How is it Handled and What are my Options?September 13, 2012
Across the Commonwealth of Pennsylvania, back to school is on everyone’s mind. While teachers and other educators are preparing their classrooms and buildings for students, all too frequently parents and students do not know which school, let alone which school district their child is going to attend because of on-going custody battles. Family law judges and practitioners alike face a barrage of custody issues around this time of year to answer the question, “where will my child attend school”. The difficulty facing the courts and those parents and students in limbo, are the limited amount of judicial resources, so trying to get in to have a judge decide this question prior to the start of school, is sometimes almost impossible. If you cannot get in for a hearing prior to the start of school, then there is the potential that a child will start school in one school (or district), no sooner get started and start making friends and getting comfortable in their new environment, and then, they must change schools mid-stream, after a Hearing.
There are a few ways to avoid these types of situations. The first is, obviously, to reach an agreement on your own. If, however, you cannot do that, and you would like to utilize the court system to assist you, you should start that process in March or April for the start of the next school year. Why so far in advance? Well, most of our local counties have a multi-tiered system for custody. That means that before you ever get to judge, you must first attend a Custody Conciliation Conference. Custody Conciliators are attorneys who are appointed by the courts to help families resolve their custody disputes.
In a Custody Conciliation Conference (which is usually scheduled in about 1 month from the date you file a Custody Complaint and/or a Petition for Modification of Custody, but can be rescheduled a number of times due to conflicts in attorney and/or Conciliator calendars), if both parties are represented by counsel, the Conciliator will first meet with your attorneys to find out what each parent’s position is on custody. The Conciliators will then try to find some middle ground with the attorneys, providing input to the attorneys as to how they believe a specific judge (if you already have a judge assigned to your custody matter), or the courts, in general, will decide particular issues relative to your case. The Conciliators will then instruct the attorneys to speak with their clients to determine if a resolution can be reached. If there is no agreement between the parents, then the matter is sent to a judge to be scheduled for a Hearing. However, some local counties allow the Conciliators to send recommended Orders to the Judge (even absent an agreement) and some do not (so it is important to know what the county’s position is on this where the Complaint or Petition is filed). So, if you had a Custody Order prior to the Conciliation and you are in a County where the Conciliator can make recommendations, you may get a recommended Order that ultimately schedules the matter for a Hearing, but that changes the schedule in the interim. Or, if you are in a County where the Conciliator is unable to make a recommended Order, you may leave with no further guidance on what you are supposed to do for custody until your Hearing date (which could be months down the road). This can lead to child-snatch situations which is not good for the ongoing parental relationship and even more detrimental to the children. However, there are some other options, which I will explain in more detail, below.
In many of our multi-phase Counties, a Custody Hearing the next step if you cannot reach an agreement during Conciliation. A Custody Hearing is a more formal process where testimony is taken and evidence is presented to assist a judge in making a decision about custody, taking into consideration your child’s best interests. This proceeding takes place in a courtroom, on the record, using formal evidentiary rules. Although you can elect to represent yourself in a Custody Hearing, you may really want to consider representation at this phase of the process, if you did not hire an attorney prior to this point. Until recently, the judges were tasked with making the subjective decision on what was in your child’s best interests. Although case law provided some guidance to the courts on what factors they should consider as part of the “best interest standard,” there was no formal guidance from the legislature. That all changed in January of 2011 when the “new” custody statutes went into effect. Now the Court is guided by 16 factors that they must consider when determining your child’s best interests. After the judge takes sworn testimony and considers the evidence, they will issue a Decision and Order which specifically states your child’s custody schedule and the reasons that the Judge chose that schedule (taking into consideration those 16 factors). Some judges will “rule from the bench” and what that means is that at the end of your Hearing, you will know the judge’s decision because they will tell you before they leave the bench. However, most of the time, the judge will “take it under advisement” which means that you will leave the Courthouse without an Order. You may have to wait a few weeks before you receive your Order from the Court which leaves you in the same position of not knowing where your child is going to be when (unless you have reached an interim agreement). It is important to note that in most of our local counties, you will not receive more than 1 day for a scheduled Custody Hearing. That means, if you do not complete testimony in 1 day, you are at the court’s mercy for the 2nd day of your trial, which may not be scheduled for 3-4 months from the date of your first day of trial and during this time, you may, or may not, have an Interim Order for Custody.
So, where does that leave you? What other options do you have?
You, as parents, can choose to mediate your dispute (or, before Hearing, a judge can force parties to mediation). There are attorneys and mental health professionals (as well as others), who are trained mediators. Mediators have differing styles (for example, some mediators will allow counsel to be present during a mediation, some will not and some are more directive than others), but in the end, the mediator is trying to help the parents come to an agreement as to the child’s best interests. So, what’s the difference between a mediator and a Conciliator? Well, Conciliator’s do not necessarily have mediation training. Additionally, a mediator cannot make a decision for the parents if they cannot reach one on their own. A mediator can write down the parties’ agreement, but it is usually the responsibility of the parents and their counsel, to finalize their agreement into a Stipulation that can be presented to the Court for issuance of an Order. Mediators are trained to point out areas of agreement, which can lead to further agreement. They are also trained to facilitate meaningful discussion to try to get to the motivation behind a parent’s position (why is it important that Johnny attend school in the district in which you live)? Oftentimes, that is more helpful in reaching resolution because instead of stating a position, the parents get to explore and problem-solve the reasons behind the position, leaving the door open for them to craft an agreement that addresses their concerns. This alternative is usually less-costly than a Custody Hearing. However, if the parents cannot reach an agreement, the mediator cannot recommend an agreement and the parents are left to either litigate, or reach an agreement on their own.
There is binding arbitration and non-binding arbitration. In my opinion, there is not much difference between non-binding arbitration and mediation, except that you grant the arbitrator the ability to make a decision (which a mediator does not have). In non-binding arbitration, if the arbitrator makes a decision with which one parent does not agree, you can still move forward to a Hearing. If you choose, binding arbitration, however, you not only grant the arbitrator the authority to make a decision, you agree, beforehand, that the decision will be final (whether one side likes it or not). Now, in custody cases, “final” is certainly relative because custody is always modifiable until the child is 18 years old.
The Collaborative Law approach uses collaboratively-trained attorneys (who also have, or are expected to obtain, mediation training) in a transparent process which allows the parties to reach resolution by examining the needs and interests behind the parties’ respective positions. At the start, both parents agree, by signing a Participation Agreement, that they are not going to litigate. The parties, who are each represented by collaboratively-trained attorneys of their own, and their attorneys all sit down in 4-party conferences where information is exchanged, needs and interests are examined, options are discussed, and ultimately (hopefully) a decision is reached. This keeps everyone out of court because once you sign the Participation Agreement, your collaboratively-trained attorney (and anyone else in their firm) are thereafter “disqualified” from representing you in litigation if you cannot resolve your matter through the use of the collaborative process. Therefore, everyone is motivated to reach a resolution because no one wants to “start over” with new attorneys.
So, to recap, the best option for you and your children is to reach an agreement on your own. This certainly allows both parents to have a vested interest and say in the major decision of where your child will go to school. This does not mean that the other parent will not see the child. In fact, with most schools being online, both parents should stay on top of what is going on with their child and in the child’s school. Both parents should be in contact with the child’s teacher. Both parents should attend back-to-school night, parent/teacher conferences, school parties, extracurricular activities and sports. Remember, your child did not choose to be in a home with separated parents. Try to put yourself in their shoes – they love both of you and want both of you to be involved in all those “normal” things that parents do connected with school. They don’t want to have to choose which parent will come to their Halloween party and they certainly do not want to have to choose which parent they are going to live with and which school they will go to. Try to put your differences with the other parent aside (doesn’t mean you have to love them) so you can make decisions jointly in the best interests of your child so a third party, who knows very little about you or your family, does not have to do it. Remember, most children, when asked, will say that they want things to be fair (and fair in their minds usually means equal).