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Litigation is not the only way to deal with child custody disputes

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Painful process: Reducing litigation in child custody disputes reduces acrimony and legal costs

Myth #28: Litigation is the only option available to parents who are unable to resolve child access and custody matters.

Just the word ‘Christmas’ evokes thoughts of gifts, food, happy children and family gatherings. For some families the greatest gift this year will be the Children Amendment Act 2014. Santa has come just in time and has brought the concept of co-parenting and the opportunity for mediation to Bermuda to help families resolve issues relating to custody and access in a manner which will reduce acrimony between parents when their relationship ends, reduce the need for litigation, and hopefully, greatly reduce legal costs.

The purpose of the original Children Act 1998 is to protect children from harm, to promote the integrity of the family and to ensure the welfare of children. The recent amendments to the Act have brought us closer to achieving those goals. Until now the only route available to parents that were unable to agree on custody or access issues was via an application for the court for determination of the issues. This procedure usually takes a long time, results in legal bills and often engenders even more acrimony between the parents. We have all heard the saying that “litigation is war”. This is not any less true in the family courts than it is in the civil courts. We can all agree that “war” is not good for children. The amendments to the Act recognise the value of both parents of a child in the upbringing of the child. The Court is thereby guided to recognise this when it determines its ruling to make a custody or access order or a co-parenting order concerning a child.

In fact, even where parents have not applied for a co-parenting order the amendment actually requires the Court to offer the parents the opportunity to participate in mediation. If either of the parents declines the offer of mediation, the Court will proceed to make a determination as it has in the past.

So how does it work? The Children Amendment Act 2014 sets up a new Co-Parenting Mediation Council whose role it is to establish a register of approved co-parenting mediators to whom the court can refer litigants. Mediation is not mandatory under the new provisions but, when the parents agree to mediation the Court will order an initial mediation assessment of the parents, which will be conducted by a registered co-parenting mediator. The mediation assessment will determine if the parents are deemed suitable for mediation. If they are, an order will be made referring the matter to mediation and all mediations as with mediation assessments will be carried out by a registered co-parenting mediator.

The mediator will determine and report on any evidence of child abuse, domestic violence, mental abuse, drug abuse and any other matter which is considered to be relevant. The mediator will provide the Court with a report setting out the outcome of the mediation and any matters pertaining to custody or access to the child that the parents have agreed to.

In furthering the welfare of children, the amendments ensure children also have a voice in the mediation process. In order for this to occur, the mediator must be satisfied that the child’s age and mental maturity is suitable to participate in mediation. The parents’ consent is necessary for a child to participate in mediation.

So how is this going to make a difference? The amendments recognise that when it comes to child custody and access related issues the court process can at times be adversarial and overly litigious. This can cause parents to become even more divided when they should be united.

As well as providing the parents with a less expensive process than going to court it is hoped that mediation will provide parents with an option intended to cause less anxiety and acrimony and foster an approach putting the needs of the child at the top of the priorities.

Mediation is a process that can assist parents to develop a child-focused parenting plan and could potentially help high conflict parents achieve a more amicable co-parenting arrangement. It is hoped that this will ultimately prevent parents from engaging in a destructive court battle over their children’s care, contrary to their child’s best interest.

Before we all join hands and start singing “Kum Ba Yah” it is important to note that mediation is voluntary and not imposed on the parties by the Court. The cost of mediation is not clear from the Act and it remains to be seen if it will actually be more cost effective than litigation. It is also important to note that the ultimate arbiter in a conflict relating to the custody and access of children is the Court. It is unlikely however, that a Court would not approve a co-parenting plan reached by the parties through mediation.

The amendments are thus taking us in the right direction and one step closer to achieving the primary goal of the Children Act 1998, which is to protect children from harm, to promote integrity of the family and to ensure the welfare of the children. Looks like Father Christmas has done it again and brought the children just what they needed, the Children Amendment Act 2014, complete with co-parenting orders and opportunity for parents reaching mediated resolutions that achieve what is in the child’s best interest.

Alma Dismont is an Associate in the Matrimonial and Family Team at Marshall Diel & Myers Ltd. She can be contacted at Alma.dismont@law.bm or on 295-7105. A copy of this article can be found at the firm’s website at www.law.bm. This column is for general guidance only and does not constitute legal advice.

Alma Dismont