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Resolving Child Custody/Access Disputes – What you need to know.

January 16, 2015

Think twice about Court involved strategies to resolve child custody/access disputes.

If you can’t settle your parenting plan and turn to an assessment to inform the Court as to the best interest of your children, consider this:

Typically more than 95% of contested child custody/access disputes settle prior to a Judge making a final order.

If however an assessment is entered into at court, the Judge will make an order consistent with the assessor’s recommendations some 80% of the time. The remaining 20% is not that the Judge differs from the assessor and comes in with something quite different. That is actually a rare event. In the remaining 20% of the time, the Judge may modify the assessor’s recommendations. For instance, instead of seeing one’s children Tuesday, maybe the Judge will say Wednesday. Instead of a return time of 7:00 pm, maybe the Judge will say 7:30.

To add, those outcomes that are imposed by the Judge are less likely to be followed than those outcomes that are reached by mutual agreement, even if both parties aren’t satisfied with the mutual agreement. Here’s why:

If one parent considers him or herself to have won, that parent goes “ya-hoo”, whereas the parent considered losing, goes “boo-hoo”. The loser will next be looking to resolve their perceived wrong. This can be achieved by passive aggressive behavior, being late, not following Orders to the letter, etc., or by stockpiling issues with the “winning” parent to return matters to Court at a later date. However, when parents agree to the outcome, even if both are holding their noses to do so, then they “own” the agreement and hence are more prone to abide by it.

Here in Ontario (typical of many jurisdictions), the Court process tries to facilitate parents reaching an agreement between them. That is why there are a number of conferences (meetings) in advance of a trial and why at those conferences, a Judge will advise on likely outcomes and ask parents to try to resolve things either with their help of their lawyers or through mediation which is often available at most courthouses.

So while a Court action may have been started, it doesn’t mean you are stuck with it and it doesn’t mean that is a good option for resolving your dispute and it doesn’t mean that your dispute won’t be resolved anyway prior to a trial or conclusion of a trial.

Please work hard to resolve things between yourselves. If you have had an assessment, know that it is likely to be very influential even if you think you know more than the assessor or if you think you have a hardball litigator. Giving the assessor a rough ride on the witness stand still won’t mean from a statistical perspective that the Judge will make an Order very different from what has been recommended. Further, even if the Judge does make an Order in favor of your position, don’t think that will be the end of your conflict. In many cases it is only the propellant to fuel more conflict.

If you want an agreement more likely to last and where you have some say or control in terms of the outcome, find a way to settle outside of Court.

Those strategies include:

Mediation;
Collaborative Law;
Lawyer assisted negotiation ( assuming you have lawyers who are genuinely settlement focused).

In the end, there may be no such thing as a good settlement. However if you reach an agreement that brings some semblance of peace that you both can live with, then your children are better off and you all can get on with life. Indeed, that just may be what a good settlement is all about. I call it a plug your nose and move forward agreement.

(See Gary’s services for separated parents.)

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I am Gary Direnfeld and I am a social worker. It would be my pleasure to be of service.

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Gary Direnfeld, MSW, RSW

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Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships.

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8 Comments
  1. As always Gary very insightful information. As a social worker who has worked with the Office of the Children’s Lawyer providing custody access assessments to conflicting families I cant emphasize enough just how destructive warring parents can be around the children they profess to love dearly. People think that the legal system will resolve issues that are often emotionally driven- there are no winners if children are caught between the two most important people in their world.

  2. Thanks… and agree wholeheartedly with your comment.

  3. Great article Gary. I would add three things to your great piece–1) a parent coach or child specialist may also help the parties reach a more durable, child centered resolution; 2) a parent coordinator can assist parties long term after the divorce, if they were or are high conflict and finally, 3) the “bloodletting” that comes from an assessment and from subsequent litigation to use or rebut the results of that assessment frequently just hardens hearts and positions, and drives the parties further away from anything resembling cooperative co-parenting. Thanks again!

    • Agree, agree, agree. I provide custody and access assessments. My process allows for me to help parents reach a settlement if within reach and my process always includes a disclosure meeting wherein there is opportunity for settlement discussion. So much then hinges on the lawyers. If litigious – no settlement. If they truly are settlement focused, seeking to spare their clients the ravages of litigation, then a settlement is usually achieved. Moral: Chose your lawyer wisely. (Addendum, March 16, 2016 – I no longer provide assessments for court involved parents. I will provide an assessment to facilitate settlement outside of a court process – “Clinical Evaluative Consultation” – see my website for details.)

  4. Alejandro Islas permalink

    I have been to court for custody of my Son and my court order has not been met by the other party. Instead the other family has filed retraining order and not allowed me to visit or pick my Son up since August 2014 ..I’m really hurting about this situation

    • Sadly your experience is consistent with what I write in my article above. That is why mediated agreements are often better – because people enter into a mediated agreement voluntarily, there is less likelihood of seeking reprisal.

  5. william permalink

    What do u do when the children’s aid kidnapped your child for lies they created and don’t let u see ur child in seven months t cover up the neglect and negligence inflicted by them. C I have proof of forcible confinement , kidnapping, public mischief , criminal harassment, child abuse ,slander, and declination of character.

    • The challenge for many parents is to find a way to work reasonably with child protection agencies. There can be a remarkable disparity in points of view and how the situation is described. You may also need a lawyer to help you through the process.

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