If you are a domestic violence survivor
and have been ordered or referred to
mediation for your custody case, this
guide can provide you with some basic
information. A lawyer who understands
domestic violence and mediation practice in
your area would be most helpful. But many
survivors cannot nd or afford lawyers to
represent them. For this reason, we created
this guide for self-represented litigants. It
includes general information on custody
mediation and tips for how to prepare.
Please remember that all programs are
different. Some of this information may
not apply to your local court or mediation
program. For more information about your
specic program, please call your local
court, self-help center, or law library. You
may also contact the Resource Center
on Domestic Violence: Child Protection
and Custody at our condential toll-free
number, 1-800-527-3223, or email us at
info@rcdvcpc.org. Our self-represented
litigants series publications, 10 Ways to
Find Help with Your Case and 10 Steps for
Presenting Evidence in Court, are also on
our website at www.rcdvcpc.org.
For more help, visit the website or
call anytime.
RCDV:CPC
Resource Center on Domestic Violence:
Child Protection and Custody
SELF-REPRESENTED LITIGANTS SERIES
How to Navigate
Custody
Mediation in Cases Involving
Domestic Violence
Author: Melissa Mangiaracina, JD, Program Attorney at the National Council of Juvenile and Family Court Judges
and Mediator at Sierra Mediation, LLC.
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES
How are Custody
Cases Decided?
When a couple with children separates,
a court order can set basic rules for how
they will parent and share custody of the
children. If the parents agree on everything,
that agreement will usually become the
custody order. If they cannot agree, they
can go to court for a trial. Each side tells
the judge what they want and why they
think their plan is best for the children.
Each parent can present witnesses and
exhibits, called evidence. Judges listen
to each parent and look at the evidence.
Then they decide what is in the children’s
best interest based on the state’s custody
laws. The judge decides where the children
live, how much time they spend with each
parent, and who makes important decisions
about them. The order may also include
other parenting matters.
Most family courts offer other ways to
resolve the case, besides a trial. These are
known as “alternative dispute resolution”
or ADR. There are a few different types
of ADR. Mediation is the most common.
Others include early neutral evaluation and
collaborative law. They all have some things
in common. They all use trained people like
attorneys, social workers, or mental health
professionals who try to help the parents
reach an agreement.
Courts like ADR:
• They believe the parties will be
more satised when they reach an
agreement on their own;
• They are less expensive than trials; and
• They help reduce the court’s workload.
Many parents also like ADR. Keep reading to
learn how to know if it's right for your case.
What is Custody
Mediation?
Custody mediation lets parents decide what
arrangement works best for them. Parents
meet with a mediator in private to discuss
their case. They can listen to each others'
concerns and talk about possible custody
plans. The mediator helps them reach an
agreement about where the children should
live, who will make important decisions,
and any other parenting issues.
When custody mediation works, parents
plan for their children’s future together.
It can reduce legal fees for a family. It
allows parents to be more creative than
a judge to make a plan that truly meets
their family’s needs, so long as the plan
meets the law’s requirements. If parents
can agree, mediators can help them write
an agreement to le with the court. This will
become their court order.
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Custody Mediation
and Domestic
Violence
In the past, many professionals thought
that mediation was never a good idea in
cases involving domestic violence. They
worried that mediation can be harmful
to survivors and children. Custody
mediation can let abusers continue
their intimidation and abuse. Survivors
may be afraid to assert their rights
during mediation. Mediation can also be
emotionally damaging and even dangerous
for survivors. In addition, a history of
intimidation, bullying, and abuse may not
be taken into account by the mediator.
When that happens, mediation can
result in agreements that are unfair and
unsafe for the survivor and the children.
The goal of mediation is always to help
parties reach an agreement that satises
them both. This can be difcult in cases
involving domestic violence.
Even though the same concerns are true
today, many survivors prefer mediation
to the court process and a trial. A trial
can be stressful and may traumatize
some survivors more than mediation. A
trial may also provoke abusers to engage
more threats, intimidation, or violence. If
survivors are emotionally ready and have
an organized plan, and if the mediation
accounts for safety, custody mediation can
be empowering for survivors. Mediation
can help survivors assert their needs and
take control of their lives in ways that may
not be possible in court. Mediation is also
less expensive than a court trial. If you are
considering whether mediation is right for
you, this guide can help you prepare.
Deciding whether to
mediate:
If your program is voluntary or allows
you to request an exemption, you have
a choice to make. Whether mediation is
a good idea for you depends on whether
you feel safe. You must be able to speak
openly about your custody case with
the mediator. You should also consider
whether you can speak up for yourself
and/or disagree with the other parent.
When deciding whether to participate in
mediation, you will want to think about the
following topics:
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HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES
MEDIATOR KNOWLEDGE OF
DOMESTIC VIOLENCE:
Many programs include domestic violence
education as part of mediator training. The
quality of the training, however, can vary
widely. And some programs do not train
on domestic violence at all. Mediators who
do not understand domestic violence will
not understand how the violence affects
the mediation process. They may not know
how to help you stay safe. Ask about what
training your program requires. You can
also ask to talk to the mediator before
the mediation about your concerns. Some
mediators have a policy against talking to
either side individually so they don’t appear
biased. Let them know that you want to talk
about your safety concerns and your ability
to speak freely. They may be more willing to
talk to you in private in that case.
COLLABORATION:
Mediators are trained to help disputing
parties by encouraging them to work
together. In cases involving domestic
violence, the coercive nature of the abuse
may not allow cooperation. Abusers usually
want to make all major decisions and
win almost all arguments. Many survivors
have experienced violence and abuse for
disagreeing with their abusers, especially in
front of others. Being in a joint session with
your abuser could make it difcult for you
to argue for an agreement that will be safe
for you and your children. This is especially
true if you have a mediator who is not
well trained in domestic violence. In that
case, the mediator may assume that both
parents bring equal bargaining power to the
table and can negotiate freely and openly.
The mediator may not understand or
account for the impact of domestic violence
on the mediation process. If you do not
feel that you can speak up for yourself
or disagree with the other parent, let the
mediator know before mediation begins.
In that case, mediation may not be
appropriate.
CONFIDENTIALITY:
A mediator will usually tell the court
whether an agreement was reached and
provide a copy of any agreement. Most
mediators must also report any abuse or
neglect of a child. Remember that some
states treat children witnessing domestic
violence as reportable child abuse. Ask
your mediator about his or her duty to
report before mediation begins. Other
than these exceptions, nothing else that
you talk about can be shared with the
court in most programs. Even though the
judge will not let parents talk about what
was discussed at mediation in court, it
is important to remember that the other
parent may nd other ways to use the
information learned in mediation against
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HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE
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5
you. Also, the mediator will usually not
share information learned from one party
in private (during screening for domestic
violence or when meeting with the parties
individually) with the other parent. Different
programs may have different rules about
condentiality, though, so ask your local
program what its rules are.
JOINT/SHUTTLE MEDIATION:
The mediator may meet with you and
the other party together in joint session,
where you and the other parent are in the
same room with the mediator. In shuttle
mediation, you stay in different rooms
and the mediator moves back and forth
between you. Participating in mediation
by telephone or online may also be an
option. Telephonic mediation is especially
helpful when physical closeness may
increase danger. If domestic violence is
present, shuttle or telephone mediation
can help avoid intimidation. If you feel
that your safety, comfort, or ability to
be honest would increase with shuttle
or telephone/online mediation, ask
the mediator about using that format.
Regardless of which option is used at the
mediation, the mediator should meet with
each party privately before the mediation
begins and before an agreement is signed
in cases involving domestic violence.
INFORMATION SHARING:
At times, you may speak to the mediator
in private. This could be in your individual
orientation or through shuttle mediation.
Ask the mediator whether what you say
will be shared with the other parent. If you
don’t want the other parent to know
what you said, let the mediator know
it’s not safe. This will keep the mediator
from sharing something that puts you
or your children in danger. For example,
let the mediator know if you are living
at a condential address. That way, the
mediator won’t include your address on
paperwork that the other parent can see.
If the mediator says information will be
shared even if you have safety concerns,
you must decide what is safe to tell the
mediator.
MEDIATOR STYLE:
Mediators can have different styles. Some
see their role as limited to helping the
parties make their own agreement. Others
may share their opinion about how strong or
weak a case is. They may give their opinion
about what they think the parents should
do. A mediator should never pressure
you to reach an agreement, but not all
mediators see their role the same. You
must be ready to stand up for yourself
and your children, even to the mediator.
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES
NEUTRALITY:
Mediators are neutral. This means that
they won’t take sides. Even if the mediators
are attorneys, they should not give legal
advice. Mediators do not make nal
decisions about custody agreements—the
parties do. If the parents cannot agree,
the court will decide. Mediators will usually
not be neutral about the best interests of
the children or the safety of the parties,
however. Let the mediator know if you do
not think that the other parent is acting
safely or in the best interests of the
children because the mediator can end
the mediation for that reason.
PARTICIPANTS:
The mediation may be limited to the
parents only. Some mediators allow
attorneys to attend. Some programs also
allow survivors to bring a support person
such as a friend or advocate, although they
may or may not be allowed to come into
the mediation itself. If you think it would
help to bring an advocate with you, ask
the mediator before mediation.
SCREENING FOR SAFETY:
Screening for safety is becoming more
common. Many mediators now have safety
screening and will take steps to increase
safety. Ask your mediator about screening
and what safety measures they can
take. If your mediator does not screen
for safety, you may want to consider
whether mediation is right for you.
VOLUNTARY OR MANDATORY:
Mediators agree that mediation is best
when the parties want to be there. But many
court mediation programs are mandatory
or allow survivors to opt out of mediation
if domestic violence is present. Some let
you request an exemption and others do
not allow for exemptions at all. In some
mandatory programs, you just have to
show up to mediation. In others, you must
attend and participate in good faith. Even
in mandatory programs, you cannot
be forced to reach an agreement. Any
agreement must be voluntary. You should
never accept an agreement that won’t
work for you and your children or that
doesn’t feel safe. You always have the
right to tell the mediator that you don’t
agree and want the court to make the
nal custody decision.
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REPORTS/RECOMMENDATIONS:
Some programs require the mediator
to provide a report to the court if an
agreement is not reached. The mediator
may also have to make recommendations
to the court. Information you share in
mediation, including about the domestic
violence, could possibly be used against
you in the mediator’s recommendations.
This is especially true if the mediator does
not understand the dynamics of domestic
violence. If your program requires
mediators to make recommendations
to the court, ask how this impacts the
mediator’s neutrality, condentiality, and
process. You can ask the mediator about
this during your orientation.
MEDIATED AGREEMENTS:
Custody mediation may or may not end in
an agreement. Sometimes parents agree
to the entire parenting plan. This is called a
full agreement. Other times, parents reach
a partial agreement. This means they agree
only to some things and the judge decides
the rest. There is nothing wrong with
reaching a partial agreement or reaching
no agreement at all.
SAFETY:
You know best how dangerous the other
parent is and whether mediation will be
safe. Before mediation, ask your local
program what safeguards they have in
place for cases involving domestic violence.
Get as much information as you can to
make this decision. Some courts require
custody mediators to take domestic
violence training, but many don’t. So not all
mediators understand domestic violence
and how it impacts custody mediation. If the
mediator permits, you may want to talk to
the mediator in private before the mediation
about your concerns. Try to see how well
he or she understands domestic violence.
Ask what precautions are in place to keep
you physically and emotionally safe (before,
during, and after the mediation). A list of
specic ways the mediator can increase
safety are included on the next page.
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES
8
Some safety measures
that can be used in
mediation include the
following:
• Using shuttle mediation. Shuttle
mediation is held with you and the
other parent in separate rooms.
The mediator moves back and forth
between the two of you.
• Participating in mediation over the
telephone. That way, you don’t have
to be in the same location as the
other parent.
• Bringing an advocate or support
person with you.
• If using joint session (with you and
the other parent in the same room),
seating you next to the mediator
and/or support person, by an exit,
and away from and out of eye
contact of the other parent.
• Using caucuses (small breaks from
a joint session) regularly to check
in with you.
• Offering staggered arrival and
departure times, so that you and
the other parent don’t show up and
leave at the same time.
• Having a telephone close at hand
to call for assistance.
• Providing separate waiting rooms
for you and the other parent before
the mediation begins and during
breaks.
• Creating a safety plan before the
mediation begins. This may include
signals that let you safely tell the
mediator if you are uncomfortable
or to ask for a break.
• Setting ground rules before the
mediation begins and making
everybody follow them.
• Holding the mediation in a
courthouse with metal detectors,
silent alarm systems, and a bailiff.
A complete guarantee of safety is
impossible. And you know best how
dangerous the other parent is and
whether mediation is likely to be safe.
Still, mediators should be willing to use
these safety precautions to make the
process as safe as possible. If at any
point you don’t feel that mediation is
safe or if the mediator is not willing
to put these safety precautions in
place, let the mediator know that you
do not feel comfortable going forward
with the mediation.
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE
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9
Preparing for
mediation:
Different courts use different words to
describe custody arrangements between
parents. Some examples are custody
agreement, parenting plan, parenting
schedule, visitation schedule, or something
else. Regardless of the word, custody
mediation usually talks about where the
children will live, what parenting time will
look like, and who will make important
decisions about the children.
Local custody laws
If you are a survivor of domestic violence,
you should understand how the violence
may impact your court case before you
mediate. Many state laws protect survivors
in the areas of custody, visitation, and
relocation. You should know and understand
what rights and legal options you may have
through the court system before mediation.
If you do not understand your legal rights,
you might accidentally give them up by
agreeing to something in mediation that the
court would not have ordered.
The website
www.womenslaw.org has
detailed information on each state’s
custody laws. The National Coalition
Against Domestic Violence (NCADV)
website also provides a list of state
domestic violence coalitions. This list can
be found at ncadv.org/state-coalitions.
You can also call the Resource Center at
1-800-527-3223 or email us at info@
rcdvcpc.org. We cannot give you legal
advice, but we can tell you what the laws
say in your state and whether you have any
special protections. We can also help you
nd your state domestic violence coalition
or local legal services organization.
Parenting plans
Parenting plans include details about
everything. They include big things like
how major decisions are made. They also
include little things like how to talk to
the other parent about who picks up your
child from soccer practice. You will be
asked to make important decisions about
your family’s future at custody mediation
without an attorney or judge present.
Mediators cannot give you legal advice.
Before mediation, you should take some
time to ask yourself: what do you want
your custody agreement to look like and
what arrangement would be safest for you
and your children? You probably won’t get
exactly what you want at mediation. But
you should never agree to a plan that is
not safe for you or your children. Some
common topics that may be discussed at
mediation include:
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES
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LEGAL CUSTODY:
Legal custody means which parent makes
important, long-term decisions about the
children. This could include where the
children will go to school, what religious
instruction they will receive, if any, and
how major medical decisions will be made.
Some states call this decision-making. It’s
called joint or shared when both parents
make these decisions.
PHYSICAL CUSTODY:
Physical custody means which parent
the children will live with. This parent will
make day-to-day parenting decisions. Joint
physical custody is when children spend
about half of their time with each parent.
Some states call this shared custody.
When one parent has the children most of
the time, that parent has primary physical
custody. With sole physical custody, one
parent has the children all the time. This
is rare. If one parent has sole or primary
physical custody, the other parent is called
the non-custodial parent.
PARENTING TIME:
Parenting time is sometimes called visitation.
This is when the children are with the non-
custodial parent. This is an important topic
to address in mediation. The parties should
clearly understand when each parent is able
to see the children and under what terms.
In cases involving domestic violence, it is
usually a good idea to set up structured
schedules with as much detail as possible.
Schedules that are too exible may decrease
safety and increase opportunities for abuse.
In addition, survivors should consider
whether supervised parenting time makes
sense for the other parent. This can be
provided by family members or a supervised
visitation facility.
EXCHANGE:
This means how the children will travel from
one parent to the other. In cases involving
domestic violence, exchanges can be
dangerous. The plan should be as detailed
as possible. It should include the specic
time the children will be exchanged, who
will be responsible for transportation,
and if safety requires, exchange by a
third-party or at a safe location (not the
parent’s home). In cases involving domestic
violence, it may make sense to have the
exchange at a school or day care, at a safe
exchange program, or at a public place
with video cameras. It is also important
to remember that each extra exchange
increases the amount of interaction with
the other parent, so frequent exchanges
may not be a good idea.
VACATION:
The plan will probably talk about each
parent’s right to take the children on
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE
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11
vacation. Include whether vacations can
be out of state or out of the country. Some
plans give each parent a set amount of
days each year. Others will set the actual
dates for vacation in advance.
HOLIDAYS, MOTHER’S/FATHER’S DAY
AND BIRTHDAYS:
The plan should include where the children
will spend holidays, birthdays and other
important dates. Before mediation,
consider which days are most important to
you. Arrive prepared to discuss where you
think the children should spend those days.
CHILD CARE:
Some plans address child care
arrangements. If you want a particular child
care provider, make sure it’s actually able
to help with child care before mediation.
That way, an agreement won’t be delayed.
RIGHT OF FIRST REFUSAL:
Some agreements include the “right of
rst refusal.” This means one parent asks
the other parent to care for the children
before calling a babysitter or using child
care. Think carefully about whether this
makes sense in your case. It can save
money if stepparents or other relatives are
not available to care for the children. But
it can be a problem or even dangerous in
cases with domestic violence. It increases
the amount of contact between you and the
other parent and may give the other parent
more opportunities to act abusively. It also
lets the other parent know when you have
plans to go out and do something.
EXTRACURRICULAR ACTIVITIES:
Extracurricular activities such as sports,
music, or other activities can be very
important to children. They can also
open up future opportunities. Parents
should consider and decide who will be
responsible for taking the children to these
events, whether one or both parents will
be permitted to attend, and who will be
responsible for paying for them.
RELOCATION:
One parent may decide to move to another
state at some point. This may not be known
at the time of mediation. But you could
talk about how a move would impact the
plan. You could have the plan say what type
of notice (or court involvement) would be
required. The plan could list conditions to
meet before relocation would be allowed by
the other parent.
INFORMATION EXCHANGE/
COMMUNICATION:
Parents must communicate about the
children at some point. Be sure to account
for safety when deciding how this will
happen. Be ready to talk about any limits
you want on the other parent's ability to
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES
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contact you and limits on what can be
discussed. This can include by telephone,
email, text, or otherwise. A number of
smartphone app-based programs let
parents communicate about the children
with less direct contact. They also track the
content of the contact, which can be used
in court at a later time if needed. This can
help avoid further abuse or harassment.
Ask your local court or advocate about
which programs they prefer.
COMMUNICATION WITH THE
CHILDREN:
Parents usually want to communicate
with the children when they are not with
them. Be prepared to talk about how often
that communication will happen, how it
will happen, and any boundaries that you
want in place. In cases involving domestic
violence, it may make sense to have set
times for telephone calls with the children
so that the abuser is not constantly calling
you. You should also think about whether
FaceTime or Skype makes sense, as those
options might allow the other parent to see
into your home.
TREATMENT/SERVICES:
Mediation may address treatment and
services for parents. Some services could
include batterer intervention, counseling,
substance abuse therapy, etc. If you want
the plan to include this, come prepared to
talk about it. Have an idea of what services
might be helpful in your case. Sometimes,
a parent who needs services has to meet
conditions before seeing the children or
spending more time with them. If you want
to ask for that, have a plan ready. Include
what the other parent needs to do or what
changes need to happen. Think about how
to track whether the parent is doing what is
expected. And try to include what happens
if the parent does not. Also think about
whether the abuser will try to make you
seek treatment or services and how you
would respond.
PLANS TO REMARRY:
A new marriage could affect the custody
arrangement. If either party plans to
remarry, it sometimes makes sense to talk
about it at mediation. In cases involving
domestic violence, however, this could
cause more conict and may not be helpful.
To learn more about custody mediation
in general or to learn more about the
custody laws in your state, visit our
website at www.rcdvcpc.org,
or contact us at info@rcdvcpc.org or
1-800-527-3223.
We wish the best for you
and your children.
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE
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Preparation Checklist
YOU MAY ALSO WANT TO TAKE THE FOLLOWING STEPS TO PREPARE FOR MEDIATION:
☐ Write down and bring to the mediation a list of any concerns and issues
that you want to discuss. Include specic factors that can help increase
safety for you and your children. This can help you stay focused on what is
important during the mediation.
☐ Ask the mediator or program whether you can bring a support person. This
could be an attorney, a domestic violence advocate, or even a friend.
☐ Bring copies of work schedules, your children’s activities, school holidays,
and other important dates. This will help you discuss a parenting schedule.
☐ Consider how your children’s needs may change as they grow. Try to make
sure that any agreement is exible enough to address those changes.
Sometimes, mediated agreements will say that the parents can request
mediation again if things change.
☐ If possible, talk to an attorney about your options before the mediation. You
may also want to have an attorney review the agreement before it is signed.
Check your local legal aid program or state bar about where you might get
free advice or a free consultation.
☐ Having to interact with your abuser will be challenging. Try to stay calm. Be
rm about what you need to keep you and your children safe.
☐ Always focus on the children’s best interest, including safety. This is what
the court will look at when deciding whether to approve the agreement.
Remember, your own ability to parent your children free of fear is in your
children’s best interest!
☐ Never forget that you are not required to reach an agreement! If you
don’t feel safe or comfortable at mediation, let the mediator know you want
the judge to decide your custody case instead.
HOW TO NAVIGATE CUSTODY MEDIATION IN CASES INVOLVING DOMESTIC VIOLENCE NATIONAL COUNCIL OF JUVENILE AND FAMILY COURT JUDGES
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This document was supported by Grant Number 90EV0439-01-00 from the Administration
of Children, Family and Youth Services, U.S. Department of Health and Human Services
(DHHS). Its contents are the responsibility of the author(s) and do not necessarily represent
the ofcial view of DHHS.
RCDV:CPC
Resource Center on Domestic Violence:
Child Protection and Custody
