Family court is where child custody decisions are made. Those who are parents and are among the 2.5 million divorcing annually or separating from a partner, will find themselves there. It can be a long road to travel. And, the legal fees can be extraordinary.
Lorraine Bracco, who played Dr. Melfi on “The Sopranos,” went bankrupt in her battle with actor Harvey Keitel for custody of their daughter Stella. It took that blockbuster role for her to get back on her financial feet.
The good news is this: financial catastrophe doesn’t have to happen. There are cost-effective routes which are alternatives to the pricey family-law attorney. They are pro se litigation, that is, self-representation, and mediation, that is, staying out of court, except to have the agreement approved.
Child custody decisions were once fairly cut-and-dry legal matters matters. Therefore, the lawyer bills involved were a nuisance but not six- or even seven-figures . Now they can be.
In her article published by Stanford University, Dr. Joan Kelly explains how at one time mothers usually were granted full custody and the fathers, who were responsible for financial support, were scheduled for visits. End of that legal story. Then values and lifestyles changed. The laws and social norms by which Family Court in each state made decisions also changed. Currently custody is decided by what’s in the best interest of the child. Providing evidence about that, proving it, and then probably proving it again and again (since custody issues can usually be revisited until the child is no longer a minor) can run up enormous legal bills. Hiring private investigators and expert witnesses have added to those.
But more and more parents have found other ways to navigate the legal system or have been considering them. “With the problems in the economy, people are increasingly using alternatives to the traditional model of two opposing parties, two lawyers, and a possible trial,” says attorney Alla Roytberg, who operates The Law Firm and Mediation Practice of Alla Roytberg P.C., based in New York. In dealing with clients, Roytberg is seeing a surge in pro se and mediation.
When someone selects to go “pro se,” explains Roytberg, “you don’t use a lawyer, at least not initially. Depending on how it goes, you might still hire one ‘formally’ for the rest of the process. With mediation, a lot of money is saved because the two parties use one neutral mediator. So often they share the cost of one professional rather then each paying for a separate lawyer during much of the process. Lawyers may only consult if needed and then review the settlement agreement as the end. Also, the process is not adversarial, and the ultimate agreement fits the parties better than even a settlement in court on the eve of the trial. So, in custody cases, people are less likely to return to court again and again.”
Roytberg is right on the money. First let’s look at the pro se option.
Agreements about child custody, no matter how they are put together, must be approved by state Family Court. In the majority of those procedures, at least one party is self-representing.
For example, in Connecticut, in 2010, 84 percent of family court cases started out that way. If things got too complex, then a lawyer could be hired on an “a la carte” or “unbundled” basis. Instead of doing all the traditional end-to-end tasks involved in child custody, the lawyer just does and bills for what still has to be transacted as he/she provides in-office consultations to a client who opts to go pro se in court. Even before the 2007 global recession, that percentage of pro se representation in family court was high. According to the National Center on State Court for 2006, in Florida 73 percent were pro se, in Wisconsin 70 percent, and in California 67 percent.
The right to represent oneself in a court of law predates the ratification of the U.S. Constitution. There is no question that it is a legal option and not just in Family Court. Of course, though, those using it are going to have to learn both what the law is about custody in that state and the procedures to follow. There, plenty of help is available free.
For example, judges, in their attempt to make the legal process fair, will bend over backwards to ensure pro se litigants understand what they are doing and how to do that according to the letter of the law. Some even claim that judges can wind up almost being the pro litigant’s unpaid legal representative. So committed are they to creating a level playing field in their court room.
Other forms of free help are available through:
- The clerk of the court office, where the majority stop by for information and guidance, especially in filing forms
- The court’s website which usually provides information as well as the necessary forms to download, and detailed instructions on how to fill them out and file them.
- Law libraries
- Articles on the Internet
- Acquaintances who have direct experience in family court, including knowing what different judges prefer
- Support groups for parents seeking custody.
Trying out pro se representation, observes Roytberg, can make sense if the case isn’t complex and the people are articulate and can present themselves well in court. However, she warns, “many who take this option don’t function well in the courtroom.” Among them are immigrants whose knowledge of English is limited. They also are unaware that the law is a special institution in society with its own language and protocol for how that language is used.
What does it mean to “function well” in the courtroom? Family court, since it is responsible for the welfare of children, tends to be a conservative institution. That means it likely will impose very traditional standards – read that “middle class” - in evaluating the fitness of parents. For parents representing themselves the bar is high for how they look, speak, treat others respectfully including the other parent, show appropriate affect or feeling at the right time, and present evidence. If they perform poorly that could be held against them. After all, there is that cliché embedded in the legal system: those who represent themselves have a fool for a client.
Perhaps the number-one peril in pro se is not following procedures exactly as they should be. Law is a rule-based discipline. Break a rule and you can be knocked out of the box. Decisions have been tossed because of a procedure not followed. Also, if the case is lost in the lower court, the option to appeal might be quite limited, since one can usually only appeal on the basis of mistake in the law, judicial bias, etc. So, if a pro se litigant loses the case in court that parent might not get another bite of the apple even if an attorney is hired.
The second alternative for approaching child custody is through mediation. Unlike the formal legal process, those who participate don’t focus on their rights as defined by the law. The context is not framed as legal. Rather they concentrate on trying to put together a compromise that is in the best interests of the child rather than what each of them wants. If the mediator or objective third party is skilled, that counterproductive sense of being enemies is eliminated. Ideally, the process actually works to reframe their conflict and teaches them to become effective partners in raising their child for years to come. Depending on the initial level of tension between the parties, in the beginning of the process, the two parties may not even have to be in the same room. And what is recommended isn’t binding. They can proceed to trial if mediation is unsuccessful.
There is, of course, the fee for this mediation service. The lawyer-mediator will likely charge per hour what lawyers in family law in that geographic area do. However, not only do the two pitch in on that one fee. The hours involved will be significantly fewer than if the process proceeded as an adversarial one, with two parties presenting their demands through two separate lawyers.
Many states, such as California, require mediation as the first step in a custody decision before they can proceed to a litigated hearing. That reduces the number of cases on the court docket, which is already jammed packed. For those who are determined to prevent a big legal bill and escalating tensions, this could work. The odds are against it where the hostilities have been intense and the parties are committed to maximizing hurt and frustration for the other.
If this non-adversarial process is successful, then all that’s needed is for the agreement to be submitted to Family Court for approval. There is no trial, which is always expensive. Those costs escalate exponentially if the trial happens in segments over time. Also, once the parties schedule a court date post-mediation they could have the decision within about six weeks. Not with going to trial. Roytberg points out that the budget problems in states like New York have resulted in manpower cuts in the judicial services. A custody case which might have been heard within several months might not be heard for years.
There are no absolute right or wrong answers about how to approach child custody after a relationship ends. What parents do know, though, is that lawyers don’t come cheap. Piling that massive bill onto one's life can get in the way of a future healthy relationship with the children. It might be in the self-interest of both the parentes and the children to investigate what are the options for the traditional ways child custody had been handled. A parent's “due diligence” is to research the topic, talk to those who have represented themselves or used mediation, and take advantage of complimentary consultations with several attorneys. The latter can provide insight about the issues as well as a realistic estimate of what the fees could be.
Alla Roytberg can be reached at the Law Office and Mediation Center at these contact points:
- Manhattan Office - 212-582-5757
- Forest Hills Office - 718-575-9479
- New Jersey Office - 973-636-9555