You expect your physician to keep your health details private. You have the same expectation from your attorney. You don’t expect to find your lawyer discussing your case details with random strangers. Chances are, you have the same expectation of privacy during medication.
Whether it’s divorce or child custody medication, you don’t expect your comments to start making the gossip rounds. However, you can run into some potential exceptions to confidentiality in child custody mediation. We’re going over these possible exceptions so you have a better idea of what to expect.
General Rule of Privilege
Before we start diving into privilege and mediation, these rules can vary by state so it’s a good idea to read up on your local rules. With that being said, most states recognized conversations held during mediation are privileged. This means your statements can’t be used against you during the child custody process.
If you’re wondering why the law is pretty strict about maintaining confidentiality in child custody mediation the answer is fairly simple. Family courts want parents to have a safe and comfortable space to work out any disagreements. When you’re not worried about your words being used against you, it’s a little easier for parents to be honest and work through their differences.
So, in a nutshell, confidentiality in child custody mediation is designed to improve communication and help both sides reach an amicable agreement.
Potential Exceptions to Child Custody Mediation Privilege
Just because you have a certain expectation of confidentiality, doesn’t mean you can say anything during child custody mediation. Your mediator isn’t a therapist. This isn’t the place or time for you to start airing your grievances.
Your mediator has a different job. Their primary purpose is to help you and your former spouse work out a child custody plan that works for everyone. So, what’s not protected by privilege? In other words, what can your former spouse and/or their attorneys legally repeat in court?
- Any agreement signed by both parents can be admitted into court. Both parents’ signatures are taken as an agreement the document can be shared with the court. An example can be a signed child custody agreement or even one outlining financial support. Since the court needs to sign off on any agreement involving the minor child, it makes sense that it’s not protected by privilege.
- Some communications occurring during mediation are legally required to be made public. This includes any statements one or both parties may make during mediation about causing physical harm to the other. Even if it’s not a threat, the statement must still be introduced to the court. Whether or not it affects your child custody case depends on the judge. If the statement is uttered in the heat of the moment or out of frustration, you may get off with a stern warning from the presiding judge.
- If you mention you’re planning on committing a crime during child custody mediation, don’t expect this statement to stay private. The mediator is required to report any criminal activity, even if it’s still in the planning stages. This exception to privilege applies to everyone connected with the legal system. Even your attorney is legally required to report any criminal activity.
- All communications relating to child abuse allegations aren’t confidential. All states have laws protecting the welfare of minors. If you accuse your former spouse of child abuse, this will be reported to the family court judge. From there, an investigation is usually launched and you’re probably going to be asked to provide supporting evidence. This is a claim you don’t want to make unless you have evidence or strongly suspect abuse. False claims can lead to jail time, hefty fines, and potentially the temporary loss of your parental rights.
Another exception to confidentiality in child custody mediation involves the mediator. If you or your former partner file a claim against the mediator, your sessions are no longer private.
All notes and minutes from your meetings will be submitted to the court. This is another type of claim you don’t want to make rashly. You and your former spouse need to prove your claim against the mediator.
Is a Child Custody Mediator Worth the Time?
For a large number of divorcing parents, child custody mediation is a lifesaver. It’s a safe place for parents to work out a custody agreement that benefits their child.
However, just remember not everything you say in mediation is privileged. This isn’t the time or place to take out your frustrations on your ex or discuss any criminal ideas.
The New Jersey Digest is a new jersey magazine that has chronicled daily life in the Garden State for over 10 years.