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November 9th, 2011 by Robert Franklin, Esq.
I’ve said many times that mediation in custody matters is no better than the underlying law and practice of the court.  After all, mediators have little power over litigants.  Mediators just try to get the parties to make a deal rather than have a judge decide the matter for them.

There are a lot of reasons why mediated settlements can be a good thing.  For one thing, the parties tend to be more satisfied with them than they are with the winner-take-all judgment the court issues.  That’s in part because they feel like they have input in the mediation that they don’t have in court.  They can also make agreements on matters that the court is powerless to rule on.  So, on balance, mediation has a lot to offer.

But what parties agree to is necessarily a product of what they think their chances are in court.  So if one party thinks a judge or jury will award him a large monetary verdict in a civil case, he’s not going to be very motivated to settle for less.

And so it is in custody matters.  A husband and wife can mediate till the cows come home, but if the wife knows to a certainty that the judge will give her the kids and him every-other-weekend visitation, why would she settle for less?  Oh, she might do so out of the goodness of her heart, and sometimes that happens.  But a system that depends on the good will of one of the parties to a notoriously acrimonious dispute – i.e. divorce and custody – is bound to fail more often than it succeeds.

So the concept of mediation as the cure-all for what ails custody cases is misplaced.  If laws and judge’s biases don’t change, there’s little mediation can do to help.

This case is a perfect example (Seattle Times, 11/7/11).

Solomon Metalwala, originally from Pakistan and Julia Biryukova, originally from Ukraine, were married in the United States in 2003.  They have two children, Maile, 4 and Sky, 2.  The couple had debt problems, but more than anything they suffered from Biryukova’s mental illness.  Between March of 2010 and the present, she’s been committed three times to mental institutions and diagnosed with a severe form of obsessive-compulsive disorder, that one psychologist said did not rise to the level of psychosis.

During the bitter divorce, Biryukova leveled child abuse allegations at Metalwala, investigations which were ruled to be unfounded.

So, on the one hand there’s the mentally impaired mother with a history of making false allegations of child abuse against the husband, who on the other hand, seems to be a perfectly capable, loving father.  In a sensible family justice system, he’d get custody and Biryukova would get visitation, probably supervised by social workers.

But our family justice system isn’t sensible; it’s Mom-centric, and, as I said above, no amount of mediation will change that.  So when the two went to mediation, what they agreed to looks like pretty much what they and their lawyers figured they’d get from the judge if he/she was required to rule.  Biryukova got primary custody and Metalwala got visitation.

But even that turned out to be too much for Biryukova.

[Attorney Leslie Clay] Terry said the mandatory mediation in which the couple participated last week was intended to bring a close to the bitter divorce. Both parties had compromised, he said, and an agreement that granted custody to Biryukova but allowed visitation with Metalwala was signed by both.

“On Friday, she called and said she’d felt pressured and wanted to void it,” Terry said.

Two days later, 2-year-old Sky disappeared while in Biryukova’s care.  Here’s what she told police happened:  she and the two children were driving in her car when she ran out of gas.  She and Maile walked a mile to the gas station, got gas, called a friend to come pick them up and, when they returned to her car, Sky was gone.

Police said there was no sign of forced entry into the car nor was there a gas can or any indication of car trouble. Police said the car started right up.

The police and the FBI are now searching for Sky.  He’s not with either parent, but the chances Biryukova is telling the truth are slim-to-none.  Someone has the child and that someone is conspiring to hide the boy from his father.  Such, at any rate, is my take on the situation.

No arrests have been made at this time,” [police officer Carla Iafrate] said. “All possibilities of what may have happened to the child are being investigated.”

She said there are still “many unanswered questions.”

You bet there are.  But however they’re answered, we all hope that little Sky is unharmed.  My money says he’s in the care of Biryukova’s co-conspirator.

With any luck, Biryukova will come clean about what she’s done with the little boy.  My guess is that will happen soon.  If so, it’ll be interesting to see what the family court judge does with the new information.  After all, if my take on the case is correct, we can now add an attempt to deprive Metalwala of his son forever to Biryukova’s previous maternal shortcomings.  Into the bargain, she’s needlessly involved the police and the FBI in her charade.

Will that be enough to convince the judge that Biryukova’s not fit to be a parent?  The fact that the local child welfare agency has taken Maile into care suggests caseworkers there think she’s not.  But of course they’ve also refused to give the girl to her father for reasons no one has yet explained.

So, despite everything, Solomon Metalwala is still being treated like a second-class citizen when it comes to his children.  Do we really expect a court to behave differently?

Maybe they should let a mediator decide.

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