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HOW TO KEEP KIDS OUT OF DIVORCE COURT

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by Lee Chabin, Esq.

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You’re separated or divorced, and angry. You’re back in court over a custody or visitation issue, taking days off from work and spending money you don’t have on a lawyer. Your daughter is acting out in school, talking back to her teachers. Your son just seems sad, not even wanting to play with his favorite toys. Why do small disagreements — over who will drive the kids to soccer practice on Sunday, for example — turn so bitter? Why can’t your ex be reasonable? The communication is so bad that you barely speak to each other.



If this situation sounds remotely like your own, New York City may have good news for you. Say hello to the NYC Family Court Mediation Program (NYCFCMP) run by Community Mediation Services, Inc. (CMS), a not-for-profit agency in Jamaica, Queens. Launched a little more than a year ago, the program is having a positive impact on squabbling parents and their children.

How NYCFCMP Works

The court-based program is administered by the Family Court in collaboration with CMS to provide mediation services to Family Court litigants with pending custody, visitation, or parent-child cases in the five boroughs of the City of New York. The program, which is free for participants, handles cases already in the courts where the parents have reached a deadlock. Usually, the parties cannot agree over where the child should live, who will make the parenting decisions, and, if the child will primarily be living with one of the parents, how frequently the other parent will have access. Judges refer to the program only those cases that pertain to custody and visitation, and which have no “cross petitions” relating to guardianship, family offenses or child support.

“If there’s anything in the petition regarding violence or child abuse, issues that would cause alarm, we ask the court to handle that,” stresses Michelle Leonard, director of Mediation Services, NYCFCMP and Queens Mediation Network. “We want to protect the basic tenets of mediation, particularly self-determination, and to ensure the safety of the parties.”

The Benefits of Mediation

In mediation, the conflicting sides sit together with a professional mediator, discuss their shared problems and review possible options for a resolution. It is far less expensive than litigation and, because it doesn’t require the presence of a judge, helps clear the court’s dockets. Mark Kleiman, founder and executive director of CMS, which provides services to over 22,000 individuals each year, says the Family Court program “provides an opportunity for parents to really talk to each another and to present the issues that are most important to them. “This could include scheduling, including vacations and holidays; the role of extended family in their children’s lives; and methods parents can use to communicate so that problems can be avoided, or dealt with as they arise.”

The process “helps to dissolve some of the emotional content that can cause conflicts to arise,” Leonard says. “We often hear, ‘I wish I had known about this beforehand, because I acted prematurely, went to Court and filed a petition, and that negatively affected our relationship,’ whereas, ‘we could have sat down and just talked to each other.’”

On average, the Family Court program provides about five hours of actual mediation. Each session is limited to two hours, “giving the parties an opportunity to go home and reflect upon what’s been discussed,” Leonard explains. After an agreement is reached, the parties return for one last session to review it with the mediator, and to ensure that they understand the contents of the agreement. At this final session, the parties also learn more about what to expect when they go back to court.

Speeding Up the Process

Very often, program participants make just two court appearances, one of its main selling points. Assuming the mediation agreement is specific enough and can be enforced in court, the judge will almost certainly approve it.

“Part of the success of the program is that it has reinforced for judges that it’s the parties who have to live with their agreements, and the more comfortable parents are with them, the greater the likelihood that the children will benefit,” Kleiman says. The mediation process is voluntary, and potential participants can choose to have their cases remain on the court docket. In the past year, judges have referred, and the mediation program has screened, about 1,500 families; of those, around 850 have taken (or likely will take) part in it. An impressive 74 percent of the program’s mediated cases will result in agreements reached by the parents. “Hopefully, more and more parents will take advantage of the program, making it the medium of choice,” says Andy Schepard, a law professor at the Hofstra University School of Law and director of its Center for Children, Families and the Law. “Parents should try to control conflict and, whenever possible, keep children out of the court system.”

One Parent’s Story

Clarissa Espinosa, who took part in the Family Court program, couldn’t agree more. The divorced mother of two, and resident of Flushing, Queens, opted for mediation after her ex-husband refused to allow her to relocate their kids to Florida. “Our divorce was bitter and antagonistic and the children’s father and I don’t speak. Yet in mediation, we were able to speak as civilized human beings. The process shut out raised voices and slamming doors. It avoided the
mumbo-jumbo of some attorneys and the attorney’s fees.” Ultimately, Espinosa, who is now attending law school, didn’t move to Florida. Her ex-husband did. Using the techniques they learned through mediation, they mutually agreed that the father would relocate with their younger daughter while their older daughter would remain in New York. “Communication is understanding, and understanding makes peace,” Espinosa says.

To learn more about the program and the many other services offered by Community Mediation Services, call (718) 523-6868, ext. 266. Online, go to www.mediatenyc.org.

Divorcing parents who want to avoid court completely can pay hourly for a private mediator. Check with CMS to find mediation centers that mediate these cases outside the courts.

Lee Chabin, Esq. is a divorce mediator and collaborative divorce lawyer whose aim is ultimately to help clients end their relationships without going to court. He can be contacted at lee_chabin@lc-mediate.com or 718-229-6149. Learn more at www.lc-mediate.com

 


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