Mediation and Children

What's really in their best interest?

by William H. Donahue, Jr., Esq., APM

When parents divorce, they need to develop what mediators call a "parenting plan," referred to in litigation as custody, visitation and child support.

The legal standard judges use in deciding these issues is the "best interests of the child" test. But how can a judge who knows virtually nothing about you decide what's in your child's best interest? How can a judge know how and with whom your child should live? Even in a full custody trial, a judge sees only a small slice of the life your family has lived. Family law attorneys and good family court judges realize what an almost impossible task family courts are asked to perform: to devise a parenting plan that best protects the interests of the children involved.

The truth is no one is in a better position to do this than the parents themselves. And mediation offers most people the best hope of getting it right. In fact, these issues so strongly cry out for mediation that many counties in New Jersey and Pennsylvania require couples to attempt mediation before a custody case can go to trial.

Let's look at what you and your spouse will be discussing when devising a parenting plan in mediation. In this article we'll look at legal and physical custody as well as visitation. Another article will look at child support.

Legal Custody: Who's The Boss?
The first question is who will have legal custody? Legal custody gives a parent the authority to make important life decisions for a child such as where the child lives and goes to school, the child's religion, and medical decisions.

Most people agree to or are awarded joint legal custody. They share decision-making. A judge can award legal custody to one parent, but that is not likely to happen unless a parent has a significant problem like mental illness or drug or alcohol abuse. A court may also grant legal custody to one parent where the parents are unable to communicate.

Physical Custody and Visitation
After parents decide legal custody, they still need to decide how much time the child will spend with each parent. This is physical custody and visitation. In mediation, I encourage parents to list all the things that are important to their children (school, activities, sports, friends, clubs, hobbies, etc.) and the time demands these things create. Then I ask them to list the demands their own time (jobs, social activities, education, sports, hobbies, etc.). Comparing these lists helps most couples shape a parenting plan that accommodates as many of these demands as possible. Since there are no absolute rules, I encourage people to be creative in shaping a parenting plan. The best parenting plans provide the consistency that children need to feel secure, but are flexible enough to accommodate changing needs.

Good News in Tough Times
There are tens of millions of children and young adults in our society who lived through their parents' divorce. Some have fared very well. Some have not. The good news is there are things you can do to improve your children's chances.

  • Reduce the level of conflict between you and your spouse. Mediation is an excellent way to do this. It helps people work through their anger rather than acting on it. No matter how angry you are or how valid your anger, you cannot hurt your spouse without hurting your children in the process.
  • Never discuss your divorce in front of your children.
  • Never criticize your spouse to or in front of the children. Children need a strong relationship with both parents. Anything that weakens that relationship will only hurt your children.
  • Never use children as messengers. You may be furious at your spouse, but your children are not pawns or weapons. Using them this way will only hurt them.
  • Assure them they are loved and wanted by both of you and that their needs will be met.
  • Assure them that the divorce was not their fault in any way. Let them know that things in their life may change and when you can, what those things will be.
  • Respect their emotions and fears. Encourage them to talk about how they feel even if you don't like what they have to say. Help your children find appropriate ways to express themselves rather than telling them they shouldn?t be angry or afraid or sad.
Finally, respect your own abilities and limitations. This is a very difficult time for you, too. If you feel you cannot rise above your own anger or depression, get help. Competent mental health professionals can make a world of difference for you and your children.