Child Custody: What Happens When Both Parents Don’t Agree?

Whenever we help a client design a child custody agreement and parenting plan, our goal is always to help both parties come to an agreement that both works for them and is in their children’s best interests. Sometimes, this just isn’t possible for a number of reasons, which begs the question: what happens when both parents don’t agree on their parenting plan?

There are a few different paths that you can take, depending on the stage of your divorce or parentage case (whether it is in process or already finalized and modifications are being requested). In both situations, we recommend that you speak with an experienced attorney who will listen to your story, answer your questions, and advise you as to the best way to move forward. If you are in McHenry, Lake, or Kane Counties, please contact us – our legal team is ready to help you.

There are several things that a judge will take into consideration when making a decision regarding a child custody agreement, including but not limited to:

• The wishes of both the parents and the child
• The mental and physical health of both the parents and the child
• The adjustment of the child to their home, school, and community
• The ability and willingness of each parent to cooperate with their plan and encourage a relationship between the other parent and the child
• The geographical distance between both parents and the logistics involved with transporting the child between them
• The daily schedules of both the parents and the child
• Any past patterns or agreements related to decision making and care for the child
• Any history of domestic abuse, child abuse, or sex offenses
• The amount of time each parent spent caring for the child during the previous two years
• The child’s relationship with both parents, siblings, and any other members of the household
• The willingness of each parent to put their child’s needs ahead of their own
• The terms of a military parent’s pre-deployment family care plan
• Whether any restrictions on parenting time are appropriate.

The court’s first priority is the wellbeing of your child, but the judge will take logistics like financial ability, schedules, and travel time into account when making these decisions. The court does not wish to place undue requirements or pressure on either parent, but to develop a plan that is in the best interests first of the child, and then the parents.

What If We Can’t Agree?

If, after talking with your spouse, you both disagree on various parts of your parenting plan, your attorney may be able to help solve your differences. At Diamond Divorce Law, our attorneys have several decades of experience – we’ve seen it all. Because of that experience, we are often able to help our clients come up with creative but agreeable solutions to many of their issues. If this is possible, it can be a win-win situation for all parties involved.

If this is not possible, the court may order both you and your spouse to attend mediation.

What Happens in Mediation?

In many cases, if both parents are unable to agree on their parenting plan, the court will order you both to attend mediation. During this time, you will meet with a court-appointed  private mediator. The sessions will usually follow a specific structure.

First, the mediator will provide an orientation of sorts, so that you both know what to expect and can more fully participate in the sessions. Then, the mediator will work to “frame” the various issues you are facing, allowing both parties to communicate what you want out of the process. 

Once these steps are finished and everyone is on more equal footing, the mediator will guide you through discussing each issue and its possible solutions. As solutions are agreed upon, the mediator will work to negotiate the agreement.

It is important to note that although you may be ordered to participate in mediation, you are not required to agree with the solutions that arise from it. We strongly recommend that you go into the process with the intention of solving the disputes that exist, but if they are not resolved to your satisfaction, you have other options. 

However, it is important to note that these options will often require more time and money, and the final decision will be determined by the judge. There is a lot your attorney can do to prepare you for your mediation process so that you have a full understanding of what you are agreeing to (or deciding not to agree to), and so that the process is as efficient and productive as possible.

When Will Mediation Not Be Ordered?

There are situations, called “impediments”, where mediation is considered inappropriate; in these cases, the process will either be modified or you will be exempted from it by the court. These impediments include:

• Domestic violence or abuse
• Harassment, intimidation, or interference with the other spouse’s personal liberty
• “Undue influence” over the other spouse
• Fraud
• Mental or cognitive impairment
• Alcohol abuse or chemical dependency

While mediation can be very helpful for a majority of couples, the process requires both parties to be able to speak freely and without fear of retaliation or abuse.

Safety measures such as separate meetings can be requested in many of these cases, if you should decide to still move forward with mediation. However, the judge will excuse you from the mediation requirement if they find that an impediment will interfere with the process.

What If Mediation Doesn’t Resolve the Disputes?

If, after participating in the mediation process in good faith, your disputes are not resolved, the Judge, with the participation of your attorney, will often provide settlement recommendations that might facilitate an agreement, but ultimately, you will be able to pursue a full trial. This requires litigation, which can become expensive and take much longer. Because each case is unique, we cannot give specific costs or timelines here, but your attorney will be able to answer your questions in more detail.

If mediation is exempted due to an impediment, a trial will also proceed.

It is essential that you understand the different options open to you as well as the possible outcomes. This is why it is essential to work with a legal team that has experience in resolving complex cases.

If you are ready to speak with an attorney who will guide you through the entire process and help you create a plan to move forward, please call our office. Over the past 40 years, we have helped hundreds of families in McHenry, Lake, and Kane Counties, and we’re ready to help you.

DISCLAIMER: Any information contained herein is solely for informational purposes and is only applicable in the state of Illinois.  While it is important that you educate yourself, nothing herein should be construed as legal advice or create an attorney-client relationship. For specific questions, we urge you to contact a local attorney for advice pertaining to your specific legal needs.