Don Sinkov of discusses who should decide child custody.This is a prime example of what happens when you leave the decision-making about your children’s lives to a stranger who doesn’t know your kids. Whether it’s a lawyer or a judge, it can be a BIG mistake.

In a litigated case, the attorney for the father asked him what he was looking for, “What do you want?”  The father indicated that he thought he would like to have custody of the kids, but admitted that he had never been the caregiver. “My wife has always been the caregiver, and I’m not sure if I can handle that, but I was thinking about it.”

The lawyer asked if there was anything else he wanted, and the husband said:

“No, we’re pretty much in agreement with all the other issues. There isn’t a lot of money to divide, and truthfully, I had an alcohol and gambling problem, so I burned through all the money we had. I’m going to AA, but I have to be honest, I don’t go to all the meetings.”

The attorney said, “Well, I don’t care about that. Do we have any dirt on your wife that would make a judge consider her an unfit parent?”

The husband said:

“Well, yeah. The doctor had switched my wife’s medication the day before she took the kids to an amusement park. The youngest couldn’t swim, but she let her go on a water ride. At the end of the ride, my daughter was in the water and thrashing around. One of the attendants, whose job it is to make sure that the kids come off the ride safely, grabbed her and pulled her out of the water. My wife was very upset, and I really don’t blame her, but I think the medication affected her judgment.”

The attorney said that was perfect. When they went to court, the husband’s attorney said:

“Listen, the main thing here is my client is a good father, and he’s really concerned about the children’s welfare. He wants full custody of the children. We have a documented incident of the wife being under the influence of drugs, and not being a capable parent.”

The lawyer had a witness testify as to the incident at the amusement park, but the testimony was out of context. The wife’s lawyer wasn’t very good, and didn’t do a very effective job cross-examining, so as a result, the judge awarded the father full custody.

At the end of the trial, the husband’s attorney walked out, and boastfully said to the the wife’s attorney, “We got the kids.” He bragged, “That’s what my client wanted. He wanted the kids.”

The husband said, “No, that’s not what I wanted. You gave me the kids. You made it look like my wife was a drug user, and now I have custody of the children. I’ve never taken care of them before on my own. I’m not sure if I can do that.”

It’s a few years later, and many problems have arisen. The couple has now contacted me and wants to come to mediation to redo the custody issue.

In mediation, YOU the parents, decide how you are going to raise your kids. You love them. You know them. Like a family court judge once told me, “I don’t know your kids. I don’t love your kids. And you are asking me to make important decisions about their lives. That’s YOUR job.”

Comments From Social Media

Must be the best reason to work together and mediate.

Age E. Smiles, Mediator DOJ Newfoundland


Well, Mr. Smies, from the context, you are absolutely correct. If these two had mediated prior to legal proceedings, THEIR needs and desires would have been addressed, not the ego of the attorney.

Buddy Thornton, BS-AHS NACM, Mediated Results


Don, this is such a good example of how things can go so terribly awry in court. I frequently discuss with parties in consultation or at the first session, the issue of who is best capable of making decisions for them and about their children, and the fact that their family is unique, its history is unique, and that they know themselves and their children better than anyone, including those wearing the block robes. And that is why they, the clients, are in the best position to make decisions about their future.

Halee Burg, Centre for Mediation and D.R.


Hi Don,

You are absolutely right. We tell parents they are the experts when it comes to the kids. Nearly all get it (they are already in our mediation process) and after doing some establishing of common ground and communication work with them, nearly all are able to consider their children’s best interests in crafting a parenting plan.

The problem we find, happens when third parties not present in the room are involved. Often its a grandparent, who has told their son or daughter that they must maintain the status quo of having the children live with them full time, or they must (save face and) win!

Unfortunately this creates a situation where that party in mediation refuses to make a decision in their children’s best interests (even when they acknowledge the good sense of it) and would rather hand it to a judge to decide, because it relieves them from having to be responsible for a plan their parents don’t approve. We have found this to be common in certain cultures where grandparents rule.

Fortunately that only happens with a minority of cases, but it does send people to court. Has anyone else come across this situation, what have YOU done about it?

Naomi Holtring, InterMEDIATE


Hello Don,

Your story exposes the trial process as one which often does not produce sensible and just results and is not suited to resolving certain kinds of conflicts.

Francis Belle, Judge at High Court

About Don Sinkov

Don Sinkov Your Divorce Mediator Westchester County, NY Putnam County, NY Phone: (914) 588-6258 eMail: