Divorce Law Monitor

Child-Focused Dispute Resolution

March 5, 2020


All too often divorce cases involving children end up being hotly contested, with a “win” or “lose” mentality.  Inevitably, this mentality results in neither parent winning and the children more often than not losing. While an asset division or support dispute can easily be assessed on a cost-benefit analysis (there is X is in dispute and you will spend Y in attorneys’ fees fighting it), when it comes to child-related issues, there is no price you can put on your child’s best interest. This often results in both parents spending a significant amount of time and money “fighting” to get custody of the children, which invariably causes a polarizing effect on their ability to co-parent the children going forward.

Rather than focus on who is going to “win” custody of the children, both parents should focus on what is truly in their child or children’s best interests, not their own.  What works for other families may not work for their family.  Both parents should be acutely aware of the individual needs of their child or children and work towards addressing those needs upon separation and divorce.

While it may not work in each case, and while it is certainly not an easy feat given the great emotion and stress involved in a separation and divorce, a more collaborative approach to custody and parenting time may be beneficial not only to the children but also to the parents. Both collaborative divorce (which, according to Wikipedia is defined as “a legal process enabling couples who have decided to separate or end their marriage to work with their collaborative professionals including collaboratively trained lawyers, coaches and financial professionals in order to avoid the uncertain outcome of court and to achieve a settlement that best meets the specific needs of both parties and their children without the underlying threat of litigation”) and the mediation process (wherein a hired mediator acts as a neutral third party to help the parties navigate through the issues while ultimately leaving the decision to the parties) are intended to be non-adversarial. Trained professionals (either experienced lawyers, mental health professionals, financial professionals, and/or retired judges) can be employed by divorcing parents to help facilitate discussions and keep settlement meetings productive and child-centric. The goal is to help the parents reach an agreement between themselves, on terms they are comfortable with while keeping the children out of the middle as much as possible.

Many divorcing parents find collaborative law or the mediation process a better fit for the parents and provide a better result for their children. The alternative is to have a judge, who, even if presented with all of the pertinent facts, will never know the children or their individual needs as well as the parents, make the decisions for the parents. Most parents can agree, even if they cannot agree upon anything else, that having someone else make important decisions for their children is never as good as being able to have a say in those decisions, even if the result is not ultimately what they wanted.

While there are many benefits to collaborative law and mediation, the process chosen should be carefully considered.  Each divorce, and each family, has its own unique set of facts that may make collaborative law or mediation not possible or practical. Regardless of how child-related issues are resolved, the focus should always be on the children as the consequences of the parent’s actions and decisions upon separation and in a divorce will have lasting results on the children and their wellbeing.

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