Mediation can be very helpful when two parties cannot reach an agreement, and most judges will insist that the parties try mediation before entering the court process. In fact, most cases in the southeastern part of Michigan are sent to mediation. There will be a mediation summary submitted to the mediator prior to the mediation, which will include the parties’ understanding of the assets and liabilities, what the law is controlling, their request for child support or spousal support, and how the debts and assets should be divided.
There are three possible outcomes to the process of mediation. The first possible outcome is that the parties reach an agreement. If an agreement is reached, then it will be considered binding, will be placed on the record that is made at mediation, and will ultimately be placed in a judgement of divorce. The second scenario is that the parties do not reach a final agreement, but agree that additional information or time to cool off is needed. The third possible outcome is that the parties do not reach an agreement and go their separate ways with the anticipation of going to trial.
One of the advantages of mediation as opposed to the court process is that it is more casual and will not be held publically, which usually encourages parties to discuss issues more openly. Mediation does not require any witnesses to be subpoenaed, and proofs do not have to be presented under certain judicial guidelines. In Michigan, most cases are settled due to the expense and uncertainty associated with trials. While we have an understanding of what we think certain judges might do under certain circumstances, we can never be 100 percent sure what a judge will decide. Mediation allows people to avoid the anxiety associated with the anticipation of trial. In some cases, clients will find out on the day of trial that another case takes precedence and that they will have to wait longer for the trial to begin. If a case is not settled at mediation, then it may be settled by the attorneys after mediation.
There are several factors that the court considers in determining the custody of a child. Legal custody grants the power to make major decisions for the child regarding religious upbringing, schooling, and medical treatment. We encourage joint legal custody because it allows both parties to contact the medical providers, schools, and religious authorities without either having to go through the other party. In custody matters, the primary location of the child will have to be determined unless the parties share time equally with the child. There are many factors that determine the best interests of the child or children and they must always be taken into consideration.
The first factor involves the emotional ties that exist between the parties involved and the child. The second factor is the capacity and the disposition of the parties involved to give the child love, affection, and guidance, and to continue the education and upbringing of the child in his or her religion or creed. The third factor is the capacity and the disposition of parties involved to provide the child with food, clothing, medical care, or other remedial care recognized and permitted under the laws of this state in place of medical care or other material needs. The fourth factor is the length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. The fifth factor is the permanence of the family unit as an existing or proposed custodial home or homes. The sixth factor is the moral fitness of the parties involved. The seventh factor is the mental and physical health of the parties involved. The eighth factor is the home, school and community record of the child.
If the court considers the child to be of sufficient age to express preference, then the child’s preference will be considered. The tenth factor is the willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. A court may not consider that degree for the purpose of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the other parent. Another factor that will be considered is whether or not domestic violence has ever been committed by one of the parties toward or in the presence of the child.
If there is an issue regarding custody and a case is ultimately tried by a court, then the court must make a finding in each one of those factors to determine which parent is more favorable. The court must look to the totality of the factors in order to determine the custody of a child and parenting time. There are many arrangements for parenting time, such as supervised visits and equal sharing of time.
If a court deems a child to be of sufficient age to express preference, then their preference will be considered. Generally, the older a child is, the more credence we give to their preference. In today’s society, many 16 or 17 year-old children have cars and will determine which parent they want to live with. However, they don’t have the final say.
For more information on Mediation Vs. Court Process In Divorce, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 869-0030 today.