I really hate when I hear that most child custody is decided by mutual consent. Mine will be on that list. I have a choice to go to trial and spend money that I don't have and have the GAL tell the judge that I should have no time with my kids or accept what she is offering. Since I can't really afford to go to trial, and knowing I will lose, I have to go with take the offer. This is like agreeing to eat a pile of dog crap of my own volition, knowing that if I don't I am going to be forced to eat the pile of cow crap over there and be shot in the head when I am done. Everyone can say I chose to eat the dog crap, but the truth is I had very little choice in the matter.Yes, that's right. Lawyers like to brag that they got a settlement with the agreement of all parties, as if everyone is happy.
One of the dirty little secrets of the court is that the judge can usually get his way with consent of the parties, and claim that he never ordered anything against anyone's agreement. In criminal court, for example, most cases are settled by plea bargain, where everyone is formally in agreement on the guilty plea and sentence.
Of course the defendant is only pleading guilty because he has been convinced that a trial will have a much worse outcome. But none of that is on the official record.
In family court, you have formally agreed to terms unless you exhaust all possible legal options. That means all motions, trials, appeals, etc. If you decide not to appeal a trial outcome, for example, then you are considered to have agreed to it, because you chose not to use your legal right to challenge it.
Most of those legal options are just a fruitless waste of time and money. I have heard family court judges tell parents that they better accept an evaluator's recommendations, else he will make them both miserable.
Unless you have a 6-figure legal budget, it is nearly impossible to exhaust your legal options. Even if you do, and you hire a mad-dog lawyer to take the case to trial, he nearly always chickens out in the end. He might burn $50k on pre-trial motions and witness, but when it gets to trial, he will nearly always work out a deal with the opposing lawyer, and then try to convince you that it is the best deal you can get, and the trial is too risky. In the view of the judge, you just spent a lot of time and money negotiating, and then consented to a settlement.
So nearly 100% of child custody cases are decided by mutual consent. Does that mean that the custody law is irrelevant? No.
I once heard an idiot propose that the checkmate was irrelevant to chess. Nearly all high-level games end in a draw or resignation, and checkmates are very rare in the official logs. So we don't need them, he argued, because the players can recognize who has won.
I hope that you can see the flaw in his argument.
People make the exact same logical mistake when they argue that parents do not need any statutory rights to their kids because most child custody disputes end in a mutual consent settlement.
Okay, I will spell it out. Chess players resign when they see no way to avoid being checkmated. Parents agree to different settlements based on whether or not they expect the court to uphold their rights. Lots of people sign off on evaluation recommendations because they have little or no practical choice about it.
If signing off on a coerced deal is consent, then a rapist could argue, "I put a knife to her throat and start to rape her, but she asked me to put a condom on and I did, so she consented to it." No, she did not consent. She just chose the better of a couple of poor options.