How to Get Mediation in Your Colorado Child Custody Case

Getting divorced usually means you and your spouse are past the point of working things out. While your marriage may be ending, you still have a reason to consider compromise: your children. You and your soon-to-be ex-spouse can save yourselves the time, money, and stress that come with a court battle if you can put aside the rancor and arrange your own parenting plan through mediation. In this legal guide, we’ll tell you how to get mediation in your Colorado child custody case.

Topics We’ll Explore

• What is Child Custody Mediation?
• Preparing for Child Custody Mediation
• Topics to Discuss in Mediation
• What Happens After Mediation?

What is Child Custody Mediation?

Child custody mediation is a common strategy for resolving child custody disputes before going to court. During the process, two parties work out a parenting plan with the assistance of a neutral third party. Mediation is often voluntary, however, Colorado courts can require it if they choose. — Colorado Revised Statutes 13-22-311

For example, the Courts in the Denver metropolitan area, Douglas, Arapahoe, and Boulder Counties almost always order divorcing couples to attend mediation before letting them set their matter for a contested hearing in front of a judge.

Why Mediation?

Whether you and your soon-to-be ex-spouse voluntarily request mediation services or are ordered by a court to do so, alternative dispute resolution, or ADR, can be well worth the effort.

Mediation is:

• Strictly Private: The entire mediation process is completely confidential until you and your ex-partner sign an agreement. You won’t be in the courtroom for negotiations. Instead, you and your attorney will be in an office, conference room, or even online.
• Non-Confrontational: The presence of each parent’s attorney plus a professional third-party mediator keeps discussions on track toward an amicable arrangement. Often you and your spouse are in separate rooms.
• Better for the Children: Mediated agreements are less stressful on kids who could be caught in the middle of contentious custody litigation.
• Less Expensive: Contentious child custody litigation costs can run into the tens of thousands of dollars for each parent. While each parent still must pay their respective attorneys for mediation assistance, they can share the cost of the mediator. Most mediators charge between $200 to $350 per hour.
• Tailored to You: Parents know their children — and themselves — better than a courtroom judge ever could. Mediation gives you the opportunity to negotiate a suitable parenting plan so the court doesn’t have to impose one.

These are just five of the potential benefits of child custody mediation. You can also use it to address:

• child support,
• grandparents’ visitation rights, and
• wills and trusts

How to Get Child Custody Mediation 

It is easy to initiate the mediation process. You simply download, fill out, and submit an Agreement to Mediate form with the Colorado Office of Administrative Courts.

Even without downloading the form, you can contact the Office of Administrative Courts and let them know you and the other party would like to try mediation.

Choose Your Mediator 

You and your former partner must agree on who will serve as the mediator in your child custody negotiations. Each of your attorneys will likely know a number of mediators and can make recommendations. You can search the Office of Dispute Resolution (ODR) website for a potential mediator. It lists potential mediators by city and judicial district.

Preparing for Child Custody Mediation

Preparation is the key to a successful negotiation. If you want to improve your chances of coming out of mediation with a parenting agreement, pay attention to what you bring into the meeting.

Going into negotiations unprepared invites delays, breakdowns, and opportunities for discussions to go off the rails. The more prepared each side is when they sit at the table, the smoother things can go.

Remember: the mediator and the attorneys are charging by the hour.

Educate the Mediator

Once you and your former partner have agreed on a mediator, a date will be set for negotiations. Typically, the date is a few weeks or even more than a month away. This gives everyone time to prepare.

The mediator will need information so they’re prepared. You and the other parent must prepare documents, including a case summary, and deliver them to the mediator at least a week before the meeting. This allows the mediator to do their “homework” before everyone sits down.

Your information packet should include:

• a factual summary of the separation/custody situation
• a synopsis or outline of legal issues
• detailed lists of the parties’ differences and points of agreement
• other supporting documents

Supporting documents can include:

• a calendar of each parent’s work/parenting time schedules
• each child’s school/pre-school calendar (showing days off, early dismissal, school trips, parent-teacher conference days, etc)
• communication records (texts, emails, phone call notes)
• financial records (pay stubs, W-2 forms, tax returns, babysitter costs/receipts)
• your child’s school records
• contact information for yourself, potential babysitters, and other emergency contacts

Note: It’s likely the mediator will reach out to each party a few days before negotiations begin to introduce themselves. They also may ask questions about specific information provided in the paperwork.

Topics to Discuss in Mediation

The mediator shouldn’t be the only person prepared when the door closes and negotiations begin. You should arrive with a checklist of custody-related issues you hope to work out during mediation.

Some of the topics will no doubt be specific to you and your former partner, so be sure to bring them up. Listed here are some common discussion areas to prepare for.

Legal and Physical Custody

It’s important to understand how Colorado law breaks down child custody. First, the term “custody” is no longer used by legal professionals. Instead, Colorado puts all custody matters under the term “allocation of parental responsibilities” (or APR) and divides “custody” into two parts:

• Decision-making responsibility, also known as “legal custody,” describes how the parents will handle major decisions for the child related to major medical, educational, and religious decisions.
• Physical custody refers to where the child(ren) will live on a regular basis and is discussed in terms of parenting time.

Colorado favors arrangements where both parents share joint decision-making responsibility, no matter which parent the children live with.

Parenting Time 

You may know this term as “visitation.” You and your ex must work out a parenting time schedule determining when the child(ren) will spend time with each parent. This might not be easy, since it will involve juggling work schedules, school, and extracurricular activities.

Exchanges 

This is the act of picking up and dropping off the child(ren) when it’s time for them to be with the other parent. Problems arise when this doesn’t go smoothly. Therefore, it’s important to plan exactly where, when, and how transfers will happen.

Most of the time, one parent will pick up the child(ren) at the other’s residence. Another popular exchange place during the school year is at school. However, these are not always convenient, especially if the parents live in different cities or are not on good terms. In that case, the “swapping point” can be a public area — a restaurant, convenience store, or park —  halfway between their homes.

Sharing Costs

Sooner or later, it always comes down to money. Sharing custody of your child(ren) with the other parent is no different. If you and the co-parent live so far apart that swapping the kids requires air travel, or a long drive and hotel expenses, you should have an agreement to share the costs.

For example, you could agree to split the costs of air travel, or pay for an overnight hotel stay if the other parent must drive a long distance to collect the kids. You might even be able to address these costs as part of the child support order.

Holidays and Birthdays

Who gets the child(ren) on birthdays and holidays can become a major point of contention if it’s not addressed at mediation. It’s hard on a child not to be able to spend Christmas or their birthday with both parents. Developing a plan for holidays and birthdays will eliminate headaches down the road.

School Vacations 

The closer you and the other parent live to each other, the more flexibility you will have to decide how to divvy up time when the children aren’t in school. This is especially relevant during major breaks, like the summer, winter holidays, and spring break. If you live closer together, the visitation schedule might not change much. However, if you live further apart, it can make more sense to let the children spend June and July with the non-custodial parent, while alternating winter and spring breaks from year to year.

Schedule Changes 

Now and then, some unforeseen development will interfere with the parenting schedule. For example, a child or parent could become too injured, sick, or busy to carry out the normal plan. Plan ahead for these hiccups in the schedule and how to make up for them. After all, these interruptions not only deprive one parent of parenting time, but they can cause them to completely alter their plans for a day or an entire weekend.

Communication 

Even if you and the other parent aren’t on good terms, you must be able to talk about your child(ren). You have to make it happen. If the sound of their voice annoys you, avoid the phone and use texting instead. If one parent is too lazy to reliably text back, use phone calls. If neither option is appealing, arrange a dependable intermediary, such as a grandparent or a mutual friend. You may even want to look into using a third party co-parent communication platform to communicate with the other parent. Preserve at least one reliable line of communication in case of emergencies.

Resolving Disputes

Surprise! You will find that getting divorced will not insulate you and your ex from future blow-ups. Each of you may, from time to time, make parenting choices the other vehemently disagrees with. You will need to resolve the occasional tiff in an informal way that does not require lawyers and court dates. Do you have a relative or friend both of you trust to weigh in on disagreements? Agree at mediation on a method for putting disagreements behind you.

Other Unique Challenges

Just because you’re resolving child custody issues outside the courtroom doesn’t mean there aren’t courtroom-sized problems to address. Since every family is unique, you’re bound to have at least one unique custody challenge to confront.

• A child refuses to visit/live with one parent.
• A child (or parent) has special needs that hinder a standard parenting plan.
• Substance abuse or a criminal background is a known problem by one parent.

You and your former partner must be honest enough to recognize where a court might order extraordinary remedies — such as supervised visitation, or splitting up siblings — and decide whether to implement it during mediation.

What to Bring to Mediation

Your mediator may provide you with a list of items or documents to bring to the mediation session(s). Most of it will be child-related documentation. Even if you’ve already provided it in advance, bring copies of the same documents just in case.

You’ll also want to brings with you:

• A Cooperative Mindset: At all times, remind yourself that you and the co-parent have opted for mediation so you can do what’s best for the child(ren). Let patience and an open mind be the order of the day as you work towards an agreement.
• A Well Rested Body and Mind: Mediation can take hours, and being in the same meeting with someone you don’t like can be physically and emotionally draining, even if you’re in separate rooms. Be sure you get a good night’s sleep. Also, bring plenty of snacks and something to drink in case nobody provides them. Wear layers in case the office is too hot or cold.
• Applicable Court Documents: If you filed for custody in court, and have been ordered to explore mediation first, bring the paper orders to the negotiation. Also bring all paperwork related to the divorce (if applicable) and custody situation.
• A Proposed Parenting Plan: If you’ve done your preparations, you should be able to come up with at least the outline of a workable parenting plan. It can be as basic or as detailed as you like. Even if the other parent rejects your proposal immediately, having at least one plan at the table gives everyone something to work with.
• Your Calendar: No, don’t just bring a blank calendar. Fill it in with your day-to-day work schedule, long-term vacation plans, and any other commitments you know about. If your work schedule varies, bring documentation showing how your schedule is determined.
• Your Child’s School Calendar: It will be incredibly helpful for everyone at the table to know about the school’s days off, early dismissals, field trips, and parent-teacher conference days. With this, everyone can get to work on the parenting schedule.
• Payment: Court-ordered mediation might be free, but if you’ve asked for it, you have to pay. Make sure you and the other parent already agree on how to share the fees for the mediator.

What Not to Say During Child Custody Mediation

Remember that mediation is supposed to be a negotiation over a possible parenting plan. Nothing more. Nothing less. Keep that in the front of your mind at all times.

If you’re going through a divorce, don’t let non-child-related issues bleed into your custody negotiations. In fact, the more you and your former partner accomplish in mediation, the more attention can be given to other issues in divorce court.

Don’t Say “Yes” to Everything 

Child custody mediation is a negotiation, a give-and-take. It is not a venue to show everyone how “reasonable” you are while discarding issues that matter to you. Don’t assume that being overly magnanimous will somehow get you what you want. It doesn’t work that way. Sure, you want to establish a cooperative relationship with your former partner. Just make certain it goes both ways.

Don’t Say “No” to Everything 

If you roll your eyes at every proposal that isn’t yours, you’ll set the mediation on a course for failure. Don’t try to intimidate others by being obstinate, or by making unreasonable demands. For example, don’t insist that the children spend every Christmas only with your side of the family. You might feel entitled by having been the more involved parent during the marriage, but don’t bring that attitude to mediation. It won’t help.

Don’t Refer to them as “My” Children 

The mediation process itself is an acknowledgment that your spouse is a parent too. Therefore, referring to your shared child(ren) as “my kids” is a silly and unnecessary slight. It will only hinder negotiations and make you look immature. Since it’s likely you both will be involved in your kids’ lives going forward, refer to them as “our children” instead. You help your cause a lot more by being civil and cooperative.

Don’t Put the Other Parent on Trial

Child custody mediation should be focused on efficiently negotiating an amicable parenting plan. It is not a spotlight to air grievances and accusations about your former partner. Keep your emotions and bitter wisecracks in check or else the session could go completely off the rails. You may have legitimate reasons to be angry at your spouse — they cheated, neglected the marriage, wasted assets —but you are in mediation to act in the interests of your child(ren).

Don’t Say You Don’t Need a Lawyer 

This could potentially be the biggest mistake of all. Just because the mediator is not a judge and the conference room is not a courtroom doesn’t mean you don’t need your lawyer beside you. The mediator is prohibited from giving any legal advice. You might have the notion that bringing lawyers will only make negotiations more contentious. Get rid of that idea. Don’t tell your former partner you don’t need an attorney. They can gain an exploitable advantage over you by bringing their lawyer.

What Happens After Mediation?

Next steps depend entirely on whether negotiation produced a written parenting agreement signed by both parents.

After Successful Mediation 

Once a parenting agreement has been drawn up, finalized, and signed by you and your former partner, you or the mediator must submit it to the court for approval. Unless the judge finds the plan unacceptable, they will approve it and enter it as a court order. A judge can order the parties back into mediation if they determine the plan is either:

• too unfair to one side, or
• if certain provisions would not be in the best interests of the child(ren).

Once the court has entered the parenting plan as an order, it will be as binding and enforceable as any court order.

What if Mediation is Unsuccessful?

The court will decide.

If the parents failed to reach agreement through mediation, the case will move to a permanent orders courtroom hearing. Much of the decision will be out of your hands in terms of the flexibility and control you had during mediation.

The Custody Hearing 

In a courtroom hearing, each party and their attorney will still be able to present their case with evidence and witness testimony. However, the judge could ask for additional information. For example, they could order a Child Family Investigator (CFI) or Parental Responsibility Evaluator (PRE) to interview the parents and children to compile an objective report. CFIs and PREs are an added cost, and they can be quite expensive.

Remember: Pursuant to Colorado Revised Statute 14-10-124, the court allocates custody and parenting time based on what is in the best interests of the child. Parents must adhere to the judge’s final ruling.

Get Help with Your Child Custody Mediation

Mediation can be stressful, sure. However, it is an integral component of family law that can be super helpful in saving time, money, and stress when it is done right. An experienced child custody lawyer can help identify key issues in a potential parenting plan, help you prepare accordingly, and sit beside you during negotiations to make sure your rights and interests are respected. Let’s talk about your case. Call 303-688-0944 to begin your case assessment.