The Closer

A Mediation Newsletter March 2010

Mediating Child Custody and the Role of Experts
by James Rainwater

In the whole world of mediation, I suppose the most contentious area is that of child custody. It can drive parents to the brink of violence and occasionally take attorneys into uncharted waters. Quite often, no one really wins, and the children get reduced to being another set of variables in a legal dispute.

However, I have seen battling parents begin working together to resolve custody issues, only to let the process get mired in whose expert testimony is more reliable. So much weight is given to these therapists and doctors and their opinions. A common stumbling block is the social study report: How recent is it? Who wrote it? Who was the subject? What is the credibility of it?

I often wondered how much impact the social study really has on a case. Recently, I found my answer at St. Mary's Law Homecoming CLE. Judge Larry Noll presented his article "Trying a Custody Case to the Bench - Practical Pointers." Judge Noll surveyed 11 of his fellow 13 Civil District Court judges in Bexar County. Regarding "The testimony of experts and their opinions after evaluation of parties, and their recommendations. (Psychiatrist/psychologist)": Only half of the judges believed this to be very important; one-quarter deemed it important; and one-quarter considered it to be only somewhat important.

My point is not to completely dismiss the social study. However, I would strongly suggest parties to move forward and not allow the promises or threats of a social study to highjack the case. Attorneys have the ability to give their clients a reality check regarding these issues. As a mediator, I also frequently give the parties a reality check. In conjunction with the attorneys, the mediator can help brush aside the debris that blurs a party's sight. Allow the expert opinion some merit, but bear in mind it is just one piece of many variables.

Rainwater Law