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Failing to Reach an Agreement Regarding Child Custody in Mediation Leads to a Court-Appointed Attorney or the Child’s Representative

If people can’t reach an agreement regarding custody and dissertation in mediation, then the next step is generally that the courts will appoint what they call an attorney for the children, or a child’s representative. The child’s representative or attorney for the children is exactly what it sounds like. It’s the attorney who is appointed by the courts.

Now, this avenue is more expensive than mediation because you’re going to have to pay a retainer to that children’s attorney. The attorney will generally begin by meeting with the mother and the father and anybody else involved in the case, and then sit down and try again to help the parties mediate an agreement. The parties may ask, “Why would we pay to have an attorney? Why should we try to sit down with this attorney to reach an agreement?” It’s really the last time when you can do it on the cheap or cheaper.

Unlike mediation, the meeting with the children’s representative or attorney is not confidential. This means that this attorney can go to the court after meeting with you and your spouse and say, “This is what I think should happen.” I warn people that if they want a mediation but they cross their arms and don’t really participate, they had better be careful, because the attorney for the children is going to say, “Hey, look, guys. Unless you work with me, unless you try to help to reach an agreement, I can go to the judge and I can tell the judge what I think should happen.

640B Evaluators

I tell them, “Unless you’re willing to surrender, again, the decision as to what’s going to happen with your children, you should give some serious thought about sitting down and talking with me.” If the parents can’t reach an agreement with the attorney for the children, a lot of times, the attorney will go in and make recommendations. Often, the next step is that the court will appoint what they call a 604B evaluator. A 604B evaluator is basically a psychologist or a psychiatrist who, again, will do interviews of the parents and anybody else involved. The evaluator will do psychological evaluations of the parties and anybody else involved with the care of the children. They will then make a report to the judge, based on their interviews and their psychological examinations, with a recommendation as to where the children should live, what type of custody it should be and what type of visitation it’s going to be.

Comparative Costs of Mediation and the Alternatives

If the parties do not like the report given by the attorney or the 604B, then they can go out and hire their own expert. I tell people that mediation is generally either free or very inexpensive compared to the cost of the alternatives. If the parties can’t reach an agreement in mediation, the court is going to come in and appoint an attorney for the children. The attorney for the children is going to order the parties to pay a retainer, a minimum of $3500 to $5,000. If the parties still can’t reach an agreement with that attorney and the court does appoint a 604B evaluator, the cost of a 604B evaluator generally starts anywhere between $5,000 to $7,500, not including the cost for them to come in and testify.

Again, if the parties want to go out and get their own evaluation, then you’re talking about another $5,000 to $7,500 to $10,000. You can see how it gets very expensive very quickly.

I tell people all of this upfront because I think it’s very important, not only for them to understand the process, but to have an incentive to sit down and work with each in situations where they don’t want to cooperate with each other. If you can’t reach an agreement, depending on the 604B evaluator’s report, you can go to trial, but it gets very expensive very quickly. It’s very important for people to sit down in any type of circumstances involving children and try to reach agreements.

Interviewer: If the case goes to trial, what happens then?

Mark Kezy: If it goes to trial, you’re talking about having the parents testify. You’re talking about people who are involved in the care of the children, including their educators, coming in to testify. You’re talking about having the experts, the 604B evaluators, coming in and testifying. You’re talking a whole week or more of trial, just involving the custody and visitation of the children.

Interviewer: I want to go back a little bit. You said that there’s generally a 75% success rate in the mediation process. If the parties can agree to seven – or eight or six – of ten issues, what are typically the things that they don’t agree on that would land them in a situation where they’d have to get additional experts to come in?

Mark Kezy: Again, what I’ll say that a lot of times, the things that the parties can’t agree on are not really the most critical things. For instance, they might get hung up on is whether the kids come home on Monday, as opposed to Sunday. What times do the kids get picked up? What times do the kids get dropped off?

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