Mediating A Custody Crisis Can Be Better Than Going Back To Court


by Cynthia M. Fox

December 2009

Cynthia M. Fox

My first article dealt with a mother’s query about the age at which children are given considerable sway by the court in determining how much time they spend with each of their divorced parents. Her two children, aged 12 and 14, were resisting spending the time with their father provided for in the court-approved parenting plan.

Absent substantiated claims of abuse by the father or some other significant shortcoming in fulfilling his role as father, the court would not likely approve a substantial reduction in his time based upon his children expressing a preference for their mom. At least not for kids under 15, which is when the court begins to defer to the wishes of the child.

However, if the children are adamant and dig in their heels when the father’s time comes up, this creates a “lose-lose” proposition for both mom and dad. Mom cannot cave in to her kids’ demands and refuse to make them available to dad without risking a felony charge, while dad is certainly in for a no-fun weekend if he forces his children to visit with him.

The best outcome is a compromise schedule worked out with everyone’s participation that is acceptable to all. Presuming the compromise still provides dad with a meaningful role in his children’s lives, it is likely the court will give its blessing.

But, getting to that compromise can be really difficult in an already-fractured family like this. Typically, the preferred parent ends up taking the kids’ side. This then stiffens the resolve of the other parent not to be shut out, while the kids see this polarization as their cue not to give an inch either.

This is where family crisis mediation can be the catalyst for a resolution. Professional mediators are often involved when two or more sides to a dispute are intractably deadlocked, such as in labor/management conflicts. Divorcing couples often turn to mediators to assist them in negotiating the separation agreement that spells out the division of property between them as well as custody and support arrangements.

The mediator does not issue a ruling after listening to every side. Instead, the mediator plays the role of “tour guide” and “traffic cop”. He or she helps the parties navigate their way to a resolution, while insuring that no one party is “bulldozed” by the others. As a neutral participant without an axe to grind, the mediator can facilitate more creative brainstorming than the parties can on their own, as well as suggesting innovative resolutions that the parties may not be able to see themselves.

Although psychologists and counsellors are often mediators, mediation is not therapy. The goal is not to make better people out of the participants, but to help them craft a mutually acceptable solution to a specific problem. In mediation related to custody and divorce issues, a family law attorney that is also a mediator certified by the family court, such as myself, can be particularly effective.

They have likely encountered these issues several times in the past and can draw on this experience for guiding the participants as well as suggesting possible outcomes. They know how to keep whatever resolution that is agreed to by the family within the boundaries of what the court will accept, although the court typically gives great deference to compromises that are freely accepted by all the parties.

However, when professional mediation can’t bring the disputants together, then the last and least attractive option is going back to court. In a future article, I’ll cover the pitfalls of asking a judge to modify an existing custody schedule when the reason is the child’s preference for one parent over the other.



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Biography




Cynthia M. Fox is a Missouri attorney and mediator located in Clayton, MO. She has pioneered a new approach to divorce called The ConstructiveDivorce® as well as handling a wide variety of other family law matters in more than 25 years of practice.  Reading or following the information in this article does not create an attorney-client relationship with Cynthia Fox. 

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Website: www.foxfamilylawyers.com

Additional articles by Cynthia M. Fox



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 yogesh ,   Edmonton Al  yogesh.gupta@shaw.ca      01/08/10 
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Interesting article.There is no doubt that a mediated solution is often better than going back to court.I am a bit surprised that your intervention provides very little focus on long term impact of the intervention and more emphasis on a quick outcome.Granted that mediation is not therapy, however a therapeutic approach in mediation often results in all parties feeling more satisfied and less inclined to go back to court. Thanks!
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 Rachel ,   Brooklyn NY  Rachel@mediate2resolution.com      12/22/09 
 Alienating Dynamics 
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Beautiful article on very typical, but extremely difficult, post-separation dynamic. One parent feels that s/he is 'protecting' the children from the other parent - about whom s/he hears only complaints - not understanding that the children will most likely only tell each parent what they know that parent wants to hear. Great idea for an intervention, which may yield better solutions. Thanks!
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