Children are precious. They are incredibly unique and yet they carry within them characteristics and mannerisms of our favorite ancestors, – a familiar twinkle, a turn of the head, a dimple on the left cheek … Yet for a family in conflict these wonderful traits and mannerisms sometimes serve as an unpleasant reminder of the other spouse’s hurtful actions or annoying habits. It often takes a force of will for a parent not to snap, “You are just as stubborn as your father!” or “You are incompetent, just like your mother!” When parents are unable to control their outbursts their children suffer. They learn to hide their true feelings, to try and fit into the acceptable mold anticipated by each of the “enemy camps” they visit on alternate weekends. It does not have to be that way. Most parents truly love their children and want them to become happy adults. This love can actually unite rather than divide the parents who are involved in a divorce or separation process, and often a lot depends on how the actual conversation about the children is begun.
In any family dispute that involves children whether it is a separation, a divorce or some other negotiation, parents need to devise a parenting plan which will address such questions as:
Do we make decisions jointly?
Does one parent have the final decision making authority in case the parents disagree?
How will parenting time be divided?
Depending on the model of the process used there could be different ways in which these questions are addressed and the ultimate creation of the plan is accomplished.
In mediation, the mediator will sit down with the two parties (and their lawyers if they choose to bring them) and review together the unique situation that exists within the family. The mediator will then help the parties come up with an appropriate parenting plan by facilitating a discussion and empowering them to agree on the best way to make decisions on behalf of the children.
In rare cases where there are specific disagreements on certain issues or professional input is needed, the mediator might suggest that the parties seek advice of a psychologist, child specialist, or another professional to clarify those issues.
In a Collaborative process that uses a collaborative professional team model the parents will have two lawyers, each representing one of the spouses and a child specialist who is usually a mental health professional. The child specialist may meet with the lawyers and the parties or may just meet with the parties. Based on his or her experience in the mental health field, he or she will help them work out a parenting plan which is then summarized and given to the lawyers to draft.
Traditional Court Process
In the traditional court model, when the case for divorce appears before a judge each side is usually represented by an attorney. If they cannot agree on decision making or parenting time, they are considered to have a custody dispute.
In a custody dispute, the court will appoint what was previously known as a Law Guardian but is now called an Attorney for the Child. This is a separate lawyer who is trained specifically to represent children of different ages and whose role is to advocate for the interests of the child in the divorce process. Depending on the age of the child, the Attorney may echo the child’s requests and desires or substitute his or her own judgment. The Attorney for the Child will interview the parents and possibly other people such as caretakers, pediatricians or teachers. He or she will then come up with a recommendation to help the parents decide what is best in terms of the parenting time and decision making for the child. The Attorney for the Child also makes recommendations to the court.
If a dispute still cannot be resolved, the parties will often reach out to a forensic psychiatrist who will perform a more thorough forensic evaluation. He or she will interview both the parents and the children and then write a report to be later used at trial to recommend what kind of parenting arrangement is in the child’s best interest.
One thing that most judges and child specialists would undeniably agree on is that in most cases what is ultimately in every child’s best interest is for the parenting agreement to be devised by the people who know him or her best – i.e. the child’s own parents. Children should be spared and kept out of the court process. They must be sheltered from being dragged through a hostile divorce between two people whom they love the most. Ideally, all parenting issues should be resolved through Mediation or Collaborative Negotiation, so that the children can hold on to their childhood and, in the words of George Eliot still feel that “the acorns and the swallow’s eggs are a wonder”
(provided by Alla Roytberg, Esq.)