By Joshua Stern, Divorce and Family Law Attorney
When I work with clients who have a child or children, nothing is more important than honoring the best interest of the child. One of the first questions divorcing parents typically ask me is how they will decide custody.
What used to be known as child custody is now called parental allocation—which is split into decision-making authority and parenting time. Parenting time refers only to the time a parent physically spends with a child, and not their legal rights to make decisions regarding the child.
For so many of the parents I work with, parenting time is the most important decision they will make—and the way it is decided can differ vastly depending on how they approach the divorce.
Depending on your circumstances, our divorce and family law attorneys at Stern Perkoski Mendez will guide you through mediation, litigation, negotiation or collaborative law. Let’s take a closer look at these four divorce processes, and how each of them could lead to the best parenting time resolution for your family.
Mediation: Ideal for Creative Parenting Schedules
Mediation is a privately or county funded process in which divorcing couples enter a contract with a third-party mediator. The mediator will ask you and your partner to acknowledge your shared goals, followed by your shared concerns. Then, the mediator works with you to propose solutions that meet your shared goals and address your shared concerns.
- Mediation protects your confidentiality — The dissolution of any marriage includes intimate details, and the confidential nature of mediation offers safety and stability to couples who may not want to discuss private information in front of a judge or in a court room.
- Mediation is nonbinding — In worst-case scenarios, one party could abandon any agreements made. Because it is confidential, these agreements cannot later be used in court.
- Mediation offers flexibility — When it comes to deciding parenting time, mediation allows for more creative parenting schedule options. If a couple had pursued litigation, their parenting schedule would likely be less personalized; the judge does not know their family and cannot suggest a plan that will meet the family’s unique needs. In amicable situations—where divorcing partners still get along—parents are better suited than a judge to design a highly personalized parenting time schedule for their family.
In best case scenarios, mediation can be incredibly beneficial and frequently leads to the most favorable outcome for all parties.
Litigation: For When Parenting Time Decisions Can’t Be Resolved
In contentious situations, the dissolution of marriage can be approached through litigation. The divorce litigation process in Illinois involves you or your partner filing a request asking the court to resolve an issue. Then, both of your lawyers gather information to settle the dispute and present it before a judge. The judge will rule and settle the issue with a decision, which is final. Typically, when children are involved, mediation is a mandatory prerequisite for litigation.
- Litigation is legally binding — In contrast to mediation, which remains confidential and cannot be used in court, litigation can be beneficial because parents must follow the court’s orders.
- Litigation includes third-party neutral professionals — When determining parenting time schedules through litigation, Guardian Ad Litems (GALs) and/or child representatives can work with you, your spouse and your child and make recommendations to the court on behalf of your child’s best interest.
- Litigation involves less decision-making authority — Clients do not have a direct voice to the court in litigation; their lawyer communicates on their behalf. Professionals have substantial input into the outcome of the case, while parents have less decision-making authority than they do in other resolution methods.
Litigation can be stressful and costly—but if it is the best choice for you and your child, Stern Perkoski Mendez will fiercely advocate for you in court.
Negotiation: Ideal for Autonomous and Amicable Parenting Decisions
Negotiation is a frank discussion directly between you and your partner, your attorneys, or all four of you. Unlike mediation, no third-party mediator is involved to guide the process.
Recently a client said to me: “The last thing I want is a stranger telling me when I can see my child.” Like this client, many divorcing couples prefer negotiation because of the possibility of excluding professionals and making these critical parenting decisions for their own family.
- Negotiation grants more autonomy — Parents may choose negotiation in place of litigation because they are confident in their ability to come to a resolution together, and would prefer not to have the input of a judge in their parenting schedules.
- Negotiation does not include a neutral party — Without a neutral mediator or third-party arbiter to break through issues, divorcing couples (and sometimes, their attorneys) must resolve parenting time issues between themselves. This means that negotiation works best among amicable couples.
- Negotiation is similar to mediation — Both methods allow parents to think creatively about the parenting time schedule best suited to their child, maintain confidentiality and avoid the stress and cost of litigation. In both methods, parents are able to create unique and flexible plans for their families.
If you’d like to keep your resolution out of court but don’t want to involve a mediator, negotiation may work well for your family.
Collaborative Law: Ideal to Keep Parenting Decisions Out of Court
Collaborative law is another non-litigation method in which you, your partner and your chosen professionals—including attorneys and child specialists—enter into a written agreement to focus all efforts, energies and resources on reaching an agreed-upon settlement before it goes in front of a judge.
- Lawyers play a large role — In collaborative law, lawyers act as advocates, legal advisors, negotiators, drafters and consultants.
- Collaborative law maintains confidentiality — The divorcing couple and their chosen professionals keep the process transparent and confidential. All parties must also commit to settling outside of court. If you are involved in a contentious divorce, collaborative law may not be the best fit as it does not offer the opportunity for litigation in court.
- Collaborative law fosters respect and consideration — In the collaborative process, all parties must commit to mutual respect—and one of the main goals is to ensure that children receive primary focus. Parents tend to value collaborative law because this intentional environment allows them to work together, with input from trusted professionals, to make decisions about parenting time.
Collaborative law enables the divorcing couple to come to an agreement with more professional support than negotiation or mediation—while also keeping discussions outside of court so that no major decisions are dependent on a judge.
Contact Our Divorce and Family Law Firm in Evanston, Chicago, Lake Forest and Oak Brook
For a divorce in Illinois, Stern Perkoski Mendez can help you decide which course of action is right to determine parenting time. We are also happy to offer recommendations for child advocates should your case require them. Request a free consultation online or call us at (847) 868-9584.. We can meet with you in our offices in Evanston, Chicago, Lake Forest and Oak Brook or at another location.