When you are involved in a divorce or child custody case your mind will almost immediately turn to the end of your case. It’s almost like you’re at the beginning of a book and you are already anticipating what the main characters will be done by the end or if they’ll even make it to the end. While I can almost promise you that you will make it to the end of your case the main issue at hand will be what will become of your relationship with your children and how the details will shake out in regards to custody, possession, and visitation. 

There are a lot of misconceptions that swirl around in the world of Texas family law. I think one of the most prominent misconceptions that I’m aware of is the idea that cases are most often determined by the decisions of a judge rather than by the parties themselves. I want you to understand that if you become involved in a child custody or divorce case the odds are very good that you or play a direct role in the final decisions of your case much more than a judge will. This is absolutely what you want to see happen and I’ll explain to you why that is. 

Judges fill a role in family law cases as much as need be

One of the big misnomers about Texas family law cases what day that it is presumed that the whole purpose of filing a family law case is to bring your case in front of a judge who will be the ultimate decider of what happens in the future with your family. The theory holds that because you and your family were not able to decide amongst yourselves how to solve various problems that a judge has to be brought in as a last resort to settle issues and establish orders for the near and long term future. 

This is true to an extent. Family court judges are seen as a last resort for you and your family when it comes to establishing orders as the result of a family law dispute. However, family court judges are also the last resort even within the case itself. What I mean to say is that you and your Co-parent will be given a permanent role and responsibility in your case to establish your orders and to negotiate over the final terms of your case as a negotiating pair. it is only after an extended period where you all will have the ability to negotiate for final orders that a judge will intercede if you all are unable to settle the case between yourselves. 

But wait, you may be saying. If you and your spouse have not yet been able to negotiate or work your way through difficult issues in your family what would be the factor that changes all of that during a family law case? Why would a family law case cause two people who can agree on very little to somehow magically begin to agree on the issues that are most important to them in their children? Isn’t it unrealistic to expect that you and your Co-parent are going to be able to hold hands and come together one last time as a married team to settle your differences? 

Despite these very reasonable questions, I would argue that there is plenty of reason for optimism in your scenario that you and your Co-parent will be able to work through the problems of your case together rather than need to resort to a family court judge to play a tiebreaker. Although we have been trained through television and movies to think that a judge will always be the final arbiter over the fate of the two parties involved in a legal dispute this could not be further from the actual truth that family law participants experience in Texas. 

What are the chances that your family law case will settle before a trial? 

One of the reasons why family law cases so infrequently go before a judge is that they are relatively long. Just about the absolute soonest, I would expect any family law case to get to a judge for a trial in Texas would be six months from the date on which the case was filed. Most of the time, however, a trial would be held approximately 9 to 12 months after a divorce or child custody case is filed. 

This gives you and your Co-parent a great deal of time to be able to work your way through any issues that may be outstanding in your divorce or child custody case. Although this can seem to be a great deal of responsibility to put on your shoulders and that of your co-parent it is actually to your benefit to be able to hold your fate in your hands rather than have to depend on the judgment of a person (the judge) who is not overly familiar with your situation. 

When it comes to issues related to your family, you and your family are much better able to understand both the short-term and long-term implications of decisions that are made than a judge would be. The judge has experience in deciding matters in his or her court but has no experience living between your four walls or raising your children. It is preferable for you and your co-parent to be able to work your way through these issues rather than to rely upon a judge. If you think about it, this is what any of us would expect in our daily lives. It would be strange to call in a third party to decide for your family or mine. 

Although it can be difficult to sort through issues related to child custody, the results of your negotiation can be fruitful to not only the case at hand but to the long-term future of your relationship with your co-parent. Being able to negotiate with the assistance of an experienced family law attorney can improve the tenor of negotiations and their content. Knowing what the important issues are in your case with the help of your attorney can decrease the amount of conversation that has to be had between you and your co-parent and can troubleshoot potential problems before they occur. 

What direct negotiations with your co-parent does in the long term can lay a foundation for you two to develop a new kind of relationship. Many people think ahead to the end of their child custody or divorce case with excitement because it means the formal end of a relationship that has failed. However, if you have children then you need to understand that your relationship with this person is just beginning. The relationship you all shared previously will come to an end but a new relationship will be beginning at that time. 

If your relationship with this person is not strong at the moment then that would be expected. However, there is no better time to begin that new relationship than right now. You can choose to work with that person civilly and conversationally to solve problems and most importantly put the best interests of your child first. This can be a challenge for many families but it does not have to be a permanent stumbling block. Putting forth intentional effort to better the relationship can help you solve the problems in your case but can lay the groundwork for a solid relationship moving into the future, as well.  

What role does mediation play in settling a divorce or child custody case? 

Another major factor that we have not yet discussed regarding what might prevent a family court judge from making a custody decision in your case is mediation. Mediation is an unsung hero in the world of family law due to its propensity to solve what were thought to be insurmountable problems and to help parties avoid the time, expense, and stress of going to a trial in their custody or divorce case. Mediation is often seen by family judges as the first and 2nd option to choose from before ever presenting your circumstances in their court. 

Mediation is a process whereby you and your Co-parent will agree upon a third party to intervene in your case in an attempt to help you all settle any outstanding issues about custody or any other matter. Traditionally, mediation takes place at the mediator’s office with you and your attorney in one room and the opposing party and their attorney in another. The mediator, who is almost always an experienced family law attorney him or herself, acts as a ping pong ball and will bounce back and forth between the two of your rooms to help facilitate a dialogue that will hopefully lead to a settlement rather than the need for a contentious trial before a judge. 

Mediation can occur and usually will occur before temporary orders hearings and trials. The benefit of attending mediation is not only will you have an experienced family law attorney to hear your circumstances and help you create solutions but that same mediator will have had experience with cases like yours in front of your specific judge. What that allows you to have is some perspective on what your judge is likely to do in terms of decision making and rulings. I like to use mediation as a sort of a preview of things to come as the mediator uses their experience, personality, and perspective to help clients see things through the eyes of a neutral observer. 

I think there is a parallel to the sports world in this regard. If you have been working with your attorney for up to a year on your divorce or child custody case and it is now time for final mediation the advice and words of your attorney may be falling flat at this point. The fact is that you have heard that person’s voice over and over and over and some of what they say may be falling on deaf ears. What is great about mediation is that you are opening yourself up to another, fresh perspective that may resonate just as much as the attorneys at that point. Although a mediator does not advise on mediation the perspective and information provided are very close. 

What mediation also does is allows you and your opposing party an opportunity to devote time and energy towards settling your case. There are no televisions, music, work concerns, kids running around, or anything else to distract you in mediation. You will also have your attorney’s undivided attention for the mediation session which is rare. I find that when people are free of distractions and thinking intentionally they are more likely to come up with solutions that work well for everyone. 

The other important thing to keep in mind is that going to final orders mediation means that you have a trial upcoming. I know when I have a deadline in my life it spurs me towards action in decision making. Going to mediation on a Friday when you know that the following Monday your trial is set to begin gives you, or should give you, a great deal of motivation to see if you can settle your case rather than have to spend a weekend preparing to go to a trial. Sometimes settlements are not possible but the vast majority of the time they are. I would guess that somewhere between 80 and 90% of family law cases settle in final orders mediation rather than proceed to a trial. 

What is it like to go to a trial for a child custody case? 

Not as many of us are fans of boxing as in generations past but I think there is a good comparison to make here regarding how boxing matches are decided and how family law cases are decided. There is an obvious parallel between the two given that judges play a role in each decision. In a boxing match, a fighter has an opportunity to simply knockout their opponent making it obvious for all the see who the winner of the match was. At that stage you are not leaving it up to the judges to decide on their scorecards but rather there is proof positive of which fighter won the match. He or she will be standing up in the middle of the ring while the other would be on their back or face down on the canvas. 

In the world of family law cases, the vast majority of children center around circumstances that are not as clear-cut as a knockout. Much of the time, family law cases that involve child custody matters which proceed to trial involve very specific issues but even experienced family law judges will struggle to decide. You should think about your case in terms of how likely you are to get the outcome you want in a trial. If you think it is likely that you will get the outcome you want then taking the risk with your time and money to go to a trial may be worth it. 

On the other hand, if you are not so confident then you may need to think twice. The perspective of your attorney should matter to you in this case because he or she will have had experience in going to trial and seeing cases like yours through to the end. If he or she is not confident in your ability to win on most of the issues that you would like then discretion may be the better part of valor. Arriving at a fair settlement in mediation doesn’t always mean that you get everything you want. Fair settlements often involve both sides giving up on things that they would like to keep things that are more important to them. 

A family law case can be highly emotional and a trial is oftentimes The punctuation mark on the end of the sentence. More often than not, that punctuation mark is an exclamation mark rather than a period. it can be very difficult to achieve your goals and a trial was given the nature of your case and the facts and circumstances involved therein. Sometimes you have to listen to outside counsel and reason rather than go with your gut especially when your relationship with your kids hangs in the balance. Ultimately, you are the person that wanted to live with your decisions and you should consider what the most likely outcome is to be in a trial and to factor in the advice of your attorney. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

if you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your circumstances will be impacted by a child custody or divorce case. Thank you for your interest in our law practice and we hope that you will join us again tomorrow as we continue to share relevant and entertaining information about the world of Texas family law.