Nancy S. Caplan, Esquire

Nancy S. Caplan, Esquire
Bend Don't Break- Mediate!

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Thursday, April 22, 2010

Child Custody Litigation - How Winners Become Losers


To "win" a child custody litigation case is usually a dubious achievement. From the moment the winner parent is hugging his or her successful trial attorney with gratitude, the "loser" is making plans for future litigation. And that's the good news. The bad news may be that the child's "losing" parent may simply give up on parenting.

The parent who "loses" lives with a fire in his or her belly. Often the bitterness of the dispute (which is ongoing and indefinite in the mind of the loser despite the conclusion of the trial) bleeds into the child's life through verbal and non-verbal communications to the child. The losing parent may constantly remind the child that the "winner-parent" has committed the unspeakable crime of taking him or her away from the losing parent. The losing parent is often gathering funds to launch a re-match in court.

In some cases the losing parent simply gives up. He or she accepts a job out-of-state or remarries and has other children and focuses on them. The losing parent stops emotionally and financially investing in a child. The losing parent feels as if the law has decided that one parent is more "parent" than the other.

It's easy to see empathize with the losing parent- is there anything more primal than a parent-child bond? What if the child innocently expressed a preference for the parent he or she felt "sorry for" or with whom he or she is used to seeing more often? These things often occur in child custody litigation and they leave palpable scars.

This is why in child custody matters in Maryland, the courts order mediation. Litigation breeds future litigation. The litigation controls the parties. In mediation, everyone compromises to a joint result. When both parents make the hard choices for themselves and for the child, they are voluntarily relinquishing the child some of the time. That feels a lot different than being ordered to relinquish their child. Mediation diffuses the anger, sweeps it aside, and in its place is the sad resignation that the separation or divorce of the parents requires that these choices be made. There is sadness, but less anger and thoughts of revenge. Mediation puts the parents in control of their own children, which is the only natural decision-making process. It is the only process available where the past is put to rest and the future is constructively planned.

Mediation makes sense in most disputes, but in child custody matters, mediation can positively change the entire landscape of life for parents and children. Parents owe it to their children and to themselves to resolve their differences themselves. Mediate- don't litigate.

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