Is there an alternative to hiring an attorney in a custody case?

Posted on May 5, 2014 by Katie Carter

If you’re hoping not to hire an attorney in your upcoming custody case, there are other options you may want to consider. Keep in mind that every possibility comes with its own advantages, disadvantages, and strategic considerations, so you’ll want to go into it having done as much research as possible so that you don’t fall victim to some of the common traps and pitfalls associated with each method. If you’re educated and savvy, you can do a good job with whatever method you choose—but, like anything, you have to do the work up front to be sure that you’re picking an option that keeps your ultimate goals in mind.

Hiring an Attorney

I know, I know—you’re reading this because you want to hear about alternatives to hiring an attorney. Still, I think discussing hiring an attorney is a good starting point because it’s what most people do, and it provides the standard against which the other methods can be judged.

When you hire an attorney, you meet with them at first and tell them a little about your situation. The attorney listens to you, asks you questions, and ultimately works with you to come up with a plan that is custom tailored to your situation. The attorney then provides you with a retainer agreement, and sets a retainer fee.

What is a retainer agreement?

A retainer agreement is a legal contract that sets forth your relationship with your attorney. It will tell you exactly what your attorney has been retained to do, how your attorney will bill and at what rate, and what will happen to your file once your case is closed. It sets forth, in detail, what the specific costs are, how the retainer and fee security deposits work at the firm, and how the firm handles changes in fees in costs if they come up. It also lists the names of the people, usually both attorneys and paralegals, who will work on your file. It’s an important document, because it sets forth the rules of engagement, and it’s designed to protect both you and the law firm. You should read it and ask questions if you have them, before you sign it.

What’s a retainer fee?

A retainer is the amount of money that must be paid to the firm before your case is officially opened. It acts like insurance, so that the attorney won’t do work without getting paid. Basically, it’s a sum of money that is taken and placed into an escrow account (or trust account) with your name on it. As the attorney does work on it, you are billed, usually in increments of a tenth of an hour, and the money is deducted from your account and moved over to the law firm’s account.

It’s not a flat fee. Most law firms bill on an hourly basis for work as it is done, and each account has a minimum fee security deposit. A minimum fee security deposit is an amount of money that your account can’t go under. If, for example, the attorney charged you a $5,000 retainer to take your case, he might set a $1,000 minimum fee security deposit, which would mean that after the attorney billed $5,001, he would ask you to put another dollar in to keep the account balance at the agreed-upon minimum of $1,000. Any time your account falls below that minimum fee security deposit, your attorney (or your paralegal) will ask you to replenish your account.

What are the advantages of hiring an attorney?

When you work with an attorney, you’re essentially paying someone else to be your expert. Attorneys (particularly attorneys who practice family law exclusively) know the law inside and out, and are familiar with handling cases like yours. Attorneys know the case law, the statutes, the courthouses, the judges, the guardians ad litem, the custody evaluators, the other attorneys, and the case workers that might be involved in your case.

When you think of hiring an attorney, you’re probably thinking about going to court. While attorneys do go to court, and often, they are also able to negotiate agreements outside of court, so you can always begin your case with cooperation in mind and try to negotiate something that takes both of your interests into account, and then, if that fails, still have your attorney in place in the event that you have to litigate your case.

An attorney will also work with you to craft a solution that takes into account your family and your specific situation.

What are the disadvantages of hiring an attorney?

Of course, like any profession, there are good attorneys and bad attorneys, so you should do your research before you make the decision to hire a specific person. Read reviews online and meet them in person before you sign on the dotted line.

It’s also difficult to estimate how much your case will cost ahead of time. Because you know your child’s father better than we do, you may be in a better position to judge how easy or ugly your case will be.


Mediation is a commonly considered alternative to hiring an attorney. We definitely see mediation arise more commonly in divorce cases than custody cases, but under the right circumstances mediation can help some couples reach a resolution to a custody and visitation dispute as well.

When you mediate with your child’s father, you hire a mediator to represent the both of you. A mediator may or may not be an attorney (you’ll have to look at each specific mediator’s qualifications to know for sure), but, regardless, it is not his job to advise you of your legal rights of give you an idea of what might be a “fair” or “good” deal for you. It is only the mediator’s job to help you reach an agreement, not to ensure that the agreement is a good one.

How do I know whether I’m a good candidate for mediation?

You’re a good candidate for mediation if the relationship between you and your child’s father is relatively cordial, if you’re committed to reaching an agreement, and you’re united in a desire to reach an agreement outside of court.

When is mediation not appropriate?

Mediation isn’t appropriate if there has been physical, verbal, or emotional abuse in the relationship, or if your child’s father is extremely controlling. If you’re unsure of whether you’ll be able to stand up for yourself or be assertive regarding your priorities and preferences, you may not be a good candidate. Remember, it isn’t the mediator’s job to make sure the outcome is fair; the mediator is really only concerned with facilitating communication and making sure the two of you can come to a resolution.

How can I make sure I get the best result possible in my mediation session?

Just because you’re committed to moving forward with mediation doesn’t mean you should go into mediation blindly. Don’t depend on your mediator to advise you of the laws; you’ll have to do some research on your own beforehand. You can rely on yourself to do that research if you want, or you can meet with an attorney to get an idea of what you can expect before you ever go into the mediator’s office.

Most attorneys don’t require that you pay a retainer to speak with them. They’ll meet with you, usually at their hourly rate, and give you advice if you need it. It’s a great idea to go meet with the attorney beforehand, talk about your situation, and come up with an idea of what you’d like to get out of mediation. Talk about what the courts are doing in cases like yours, and what a reasonable agreement would look like. Go into mediation with a range of acceptable scenarios in mind, so that you aren’t blindsided and confused when issues come up. Then, after mediation, you can always take your agreement to the attorney to review before you sign it, just to be sure that you haven’t misread or misunderstood something.

What are the advantages of mediation?

Mediation is often far, far less expensive than litigation.

Mediating (or negotiating) an agreement usually keeps things far more cordial between parents, which is important if your children are young and you’re going to have to work together to co-parent for a number of years. It’s definitely in the best interests of the child to keep things as cordial as possible between the two of you.

What are the disadvantages of mediation?

Like we’ve already discussed, a mediator may or may not be an attorney, so you’ll want to be a little bit careful. He’s not looking out for your best interests, advocating for you, or educating you on the law, so you should tread carefully.

Remember that if you are uncomfortable or unhappy at any point, you can always say “no,” and leave mediation.


If you and your child’s father are interested in collaboration to resolve your custody and visitation dispute, the first step will be to hire a collaboratively trained attorney. A collaboratively trained attorney is different than a regular attorney (though many collaboratively trained attorneys still handle non-collaborative cases) because they have separate, specific training. In our office, Sheera Herrell is collaboratively trained.

When you commit to collaboration, you and your child’s father sign an agreement where you commit to resolve our differences without going to court. (In the event that collaboration broke down and you wanted to go to court, you’d have to hire a different attorney.) You also agree to treat each other with respect, share information freely, and come up with a resolution that serves the best interests of your family.

Like negotiation and mediation, your goal here is to reach an agreement together, except that in a collaborative situation you hire a team of professionals to help you reach that agreement. Your team of professionals includes your attorneys, a collaborative coach for each parent, a child specialist, and a financial specialist.

How do I know if collaborative divorce is right for me?

Well, like with mediation, collaborative divorce works best for people who are truly committed to working together towards a resolution and avoid going to court. If the relationship between the two of you is already relatively amicable, that certainly helps.

When is collaborative divorce not appropriate?

Again, like with mediation, collaborative divorce isn’t appropriate in cases of abuse where there’s an unequal balance of power. If your husband is a bully and you’re not normally able to stand up to him, you may find your interests are better served by hiring an attorney to represent you specifically.

What are the advantages of collaborative divorce?

The main advantage of collaborative divorce is that it helps maintain the relationship between you and your child’s father. By identifying the best interests of your children as the most important thing and committing to a divorce that keeps those interests at the forefront of your mind, the two of you ensure that you will have an easier time co-parenting later and that your child’s upbringing will be a little bit easier.

Collaborative divorce also encourages a lot of creativity, and allows each of the people involved to help craft a custom-tailored solution to the problems at hand. People who have been through collaboration indicate the highest levels of satisfaction with the system. You also have the advantage of having a number of professionals guide and coach you through the process, so you feel like you’ve been listened to and that you’ve had the advantage of everyone’s wisdom in crafting your agreement.

What are the disadvantages to collaboration?

The biggest disadvantage to collaboration is that it is often expensive and, like hiring a non-collaborative attorney, it’s very difficult to estimate what the total expense will be.

If you’re considering moving forward with your custody case without hiring an attorney, you’re not alone. It’s definitely best to be as informed about the process beforehand as possible, though, so that you can be sure to make the best decisions for you and your children. For more information or to find out what might be the right approach for you, please give our office a call at (757) 425-5200.