Thoughts on Mediating Custody


by Jeffrey J. Beaton, Jessica Spear

May 2011

As a mediator, I have been involved in thousands of custody cases with their many nuances. Frequently, the perspectives of the participants amount to little more than parents playing out traditional gender roles. The mothers often argue a “tender years” position, and the fathers counter with a desire to be more than a mere “weekend dad.” The mediator’s role becomes especially frustrating when the parties truly believe an intractable position is in the best interest of the child. How do mediators help the parties to find a win-win resolution to these difficult disputes?

Both fathers and mothers are dissatisfied with the legal process. Studies indicate that this dissatisfaction extends to lawyers, the law, and the courtroom. As a rule, women feel disadvantaged by the legal system. I frequently hear that men are given a leg-up by lawyers and the system. Mothers often feel that their role as care-taker in the home is devalued by the legal machinery. More than once, I’ve been told in mediation that women fear that their role as a unpaid caretaker will negatively affect them as the “best interests of the child” are determined.

By contrast, fathers believe that the legal process turns them into virtual ATM machines. Most tell me that the legal process treats them poorly with regard to custody. Many express the position that they are devalued as care-takers because they have put so much of their time and energy into the role of bread winner. Especially for men, this is a first experience with the politics of gender. Women have faced a certain amount of discrimination in their gender roles previously. For men, however, this is often the first time they have run into any gender barriers.

Many courts and mediators understand the value of shared physical custody. Given that fathers frequently express an interest in spending more time with their children in mediation and courtroom custody battles, one would expect that fathers’ percentage of custody would begin to increase. Nevertheless, mothers remain the primary physical custodians of children after divorce and separation.

In my experience, the parent who loses custody in the courtroom often plans for future litigation. Even if the parent forgoes litigation, he or she lives with a distaste for the system. Often this bitterness carries into the life of the children without the parent’s awareness. Of course, the losing parent may simply give up and go away. He or she may leave the child to the “winning” parent, and move on emotionally feeling that the law has decided the other parent is “better”. This begs the question: why aren’t courts doing more to include both parents in the co-parenting orders for divorcing and separating couples? The data further make us wonder whether mediators can honor the need for children to see both parents. The answer to the first question is that family courts are hard-wired by statute to come up with certain outcomes. Mediators have more flexibility to arrive at resolutions driven by the needs, wishes, and agreements of the parties.

What is to be done? One commentator has suggested going so far as to destroy all divorce courts.* With all due respect to the notion and its originator, perhaps there is a less dramatic step we can take. Let us admit that we, as mediators, can be biased toward the best interests of the child. Let us further assume that the best interests of the child include having both parents be important factors in a child’s life.

Mediators must recognize that the parents are the ultimate authority on what the proper co-parenting arrangement should be. Nevertheless, it is our job to remind the parents that a child’s best interest might not always be served by traditional gender roles. Mediation’s flexibility allows us to “tweak” an agreement to give monetary credit to a parent for otherwise under-valued child rearing. We also have the ability to credit a parent for extraordinary efforts to earn income and share it with the child. Naturally, these are merely suggestions for moving the process toward a win-win resolution in which both parents believe that their roles are valued. It also allows the traditional parental roles to merge with the roles of single parents.

I think we must be advocates for the children as we mediate custody disputes. If we keep the best interests of the child in mind, perhaps the parents will follow the example. Our co-parenting agreements will reflect this concern, and more children will thrive despite parental separation.

*Shanoff, Alan, (September, 2010) It’s Time to Blow up Divorce Court, Toronto Sun.



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Biography





Jeffrey J. Beaton, twice graduated from the University of Virginia, receiving his B.A. in 1978 and his J.D. in 1982.  Mr. Beaton began practicing law in 1984, becoming lead trial attorney for the firm of Beaton & Hart, P.C..  Since 1996, Beaton has served as a mediator and arbitrator in numerous disputes, both court appointed and privately.  He is a certified trainer, mediator and mentor in both family and general mediation in Virginia.  Mr. Beaton is currently a principal in the firm, The Center for Law & Mediation, P.C., which he founded in 2000.

 

Jessica Spear

Ms. Spear is currently seeking her degree in Health Care Administration from the University of
Phoenix. Spear is a paralegal with the mediation firm The Center for Law & Mediation, P.C. She is actively engaged as a mentee seeking her family mediation certification from the Virginia State Bar. 




Comments



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 Bill ,   Kansas City Mo    07/04/11 
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Quickly reframe the concept of "custody" to parenting. What's best for the child is the key. Children are not criminals or wild animals, and certainly not objects to be owned like furniture. They need their parents to be parents, not owners or custodians. Creating a parenting plan for the child is what the child needs.
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 Bernie ,   Newbury UK    07/01/11 
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This is a very topical issue and I agree on the need to question gender assumptions about parenting. Assuming that the authors' definition of 'shared physical custody' is more or less 50/50, however, it's important to factor in recent research, particularly from Australia, which suggests that fathers like shared care but children and mothers don't. Furthermore, when there's ongoing conflict, shared care is indeed harmful to children.
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 Kathleen Hammock,   Highland IL  khammock@hammocklaw.com      06/14/11 
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This article raises important points. When the courts (and lawyers) start to realize that the cookie-cutter approach to custody merely sows the seeds for future conflict, we will start to get somewhere with the big picture. In the meantime, we mediators have a chance to help people one at a time to overcome the "system" by customizing their own custody solutions. Their solutions can be modified through further mediation as the children grow and needs change. The result is far lower conflict as time goes on--no need for planning future litigation. Great article.
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 Prince Chanai,   Lagos  princechanai@yahoo.com      06/03/11 
 Custody issue -African Perspective 
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Cultural as well as Extended family influences continue to play dominant roles in custody matters in Africa. It is almost impossible to mediate a settlement that involves handing over the custody of a male child to the mother especially if the child is a teenager. In the same vein, it is much easier to find a consenting father who settles for weekend visits to a daughter in custody of an ensranged wife. I believe more enlightenment on areas of gender equality is neccessary.
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 Judith ,   Fullerton CA  jak@judithkaluzny.com      06/01/11 
 "custody" 
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First, start with the language. Change the family codes to eliminate those demeaning and hostile words, "custody" and "visitation." Twelve or 14 states have done so, including Texas, Montana and Florida. California refused in 1989 when Jay Folberg wrote a proposed "Parenting Plan" law. Bad language breeds hostility and hostility breeds litigation; litigation breeds income for many related fields.
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