Custody Mediator Or Guardian ad Litem: Which Do You Need

by Kristin Zurek of Cordell & Cordell, P.C.

What do you do when you get correspondence from your attorney and you see that your proposed parenting plan and your-soon-to-be ex’s differ by only one overnight? What do you do when you think your soon-to-be-ex has a serious drinking problem, and you think you’d be the better parent to have sole custody? Does custody in either situation just have to be tried? Is the Judge going to try to force custody in either situation to settle?

In many of the jurisdictions in which I practice, the Court has a local rule which requires the parties to attend at least 1-2 hours of mediation when there is a custody issue within the case. If there is no local rule requiring such mediation, there are oftentimes free mediators within the Court system that can be appointed to a case to help to try to resolve custody issues.

It’s often abundantly clear to the litigants that the Court is trying to resolve custody issues outside of trial. I often tell clients that it’s not because the Court doesn’t want to hear your custody case – it’s that the Court recognizes that the parenting plan they’ll decide on in Court will oftentimes be what neither party wanted, which will lead to further custody modifications down the line. The Court, naturally, will then support the parties in working together in an environment that fosters cooperation and helps the parties arrive at a mutually agreeable custody plan. Any good litigator will tell you that litigation most certainly does not foster cooperation between the parties!

A mediator is not an advocate for either litigant. A mediator is not an advocate for the children in a case. A mediator is not going to tell one parent that they are better than the other parent. A mediator is going to try to get the parties to work together on a custody schedule that suits the both of them. A mediator is going to try to find middle ground between both parties’ positions. A mediator’s primary goal is to try to get you to reach a resolution of the custody issues of your case.

Where there is greater concern about one party’s parenting skills, or concern about the children’s safety in another parent’s home, a Guardian ad Litem is more appropriate in a case. A Guardian ad Litem’s purpose is to act as an advocate of the child, and is typically granted enough investigatory power within a state’s laws to investigate the circumstances surrounding a case to determine what kind of custody is in the best interests of the child. The Guardian ad Litem’s primary goal is to determine what custody plan is in the best interests of the child, and to advocate for that plan to the Judge. The Guardian ad Litem may end up supporting one or the other litigant in a case, or they very well might support a more middle of the road approach in a custody case. The facts and circumstances vary with each case, but the Guardian is not tied towards trying to find middle ground between both parent’s positions.  This person will advocate solely for your child’s position, which oftentimes during dissolutions, gets overlooked.

So which does your case need? Talk to your attorney about your options in your case. Custody may just have to be tried, but these options might be worth investigating to try to reach a resolution on a parenting plan before just leaving it up to the Judge.

Kristin K. Zurek is an Associate Attorney and Litigation Manager in the Cordell & Cordell, P.C. office in St. Louis, Missouri. She has dedicated her practice exclusively to domestic litigation. Ms. Zurek is licensed to practice law in the state of Missouri.

Ms. Zurek began her career as a law clerk in a family law practice while attending law school. She has worked on many family law matters, helping clients to navigate the complex legal system and to successfully restructure their families while serving to advocate for her client's best interests.

Read more about Ms. Zurek.

Comments (0)