In most cases custody and visitation rights are resolved by agreement. It is often unwise and extremely costly to litigate custody. Not only do the parties risk that a judge will make an uninformed decision, but an order after trial will usually not contain the numerous provisions regulating decision making, care and control of the child that a well-crafted custody agreement will contain. As a result, the parties may well end up back in court if they are not able to implement the Court’s directives without disagreement over missing details.
The cost of a custody trial is also prohibitive. It is not uncommon for a custody case to cost in excess of $50,000, and sometimes $100,000 in attorney and expert fees for each party. The time required to litigate custody is also prohibitive. In Family Court, a custody trial is often scheduled on sporadic dates over the course of many months, since other proceedings (neglect, termination of parental rights, and family offense) will take priority on the Court’s busy calendar.
In light of these factors, the parties are usually fairly motivated to reach a settlement. A settlement also allows the parties to incorporate provisions that a judge would not include in a decision after trial, such as a right of first refusal, and limitations on relocation, discussed further below.