Best Interests of a Child

Leo Hura- JD, Mediator

I’ve mediated an increasing number of cases involving child custody and visitation or parenting planning. I wanted to reflect upon and share some thoughts about circumstances which impact these cases.

It’s nice to have simplicity, maybe a single issue to mediate with collaborative parents, who just need an intercessor to bridge small gaps. These cases sometimes occur.  More often situations are complex, requiring significant efforts to simplify complex issues and sets of interrelated issues so agreements can be achieved.  A few examples of complicating issues impacting parent’s ability to focus on their child include:

• Stigmas which have a lasting corrosive effect. For example a reversal of social or economic status or both derailed the relationship and create a lasting flash point.
• One or both become angry, some violently upset about the separation or divorce. Restraining or protective orders are in place. Child transfers may occur at a police station or a public place.
• Unmarried couples with informally acknowledged paternity and child custody arrangements run into difficulties in holding to the informal terms in changed circumstances.
• A partner desiring, even obsessed, with desires for reconciliation cannot let go.
• From birth, through several years before the break-up one parent has been a primary care giver, in some cases giving up their professional pursuits, and the partnership ends. It is only after the break-up the other parent claims a significant interest in their child.
• In the changed relationship communications have become difficult and often lead to emotional outbursts. Degraded or worse communications curtail discussion of not only specific issues but create a ripple effect on every other aspect of the partnering arrangement which the two are seeking to establish or maintain with regards to their child.
• Grandparent or extended family involvement complicate parent issues.
• Listing a few more:
  • a new partner for one of the parents,
  • a need or desire to move, disagreements over schools, religion,
  • different priorities about a child’s physical, social, or intellectual activities and development,
  • changes in economic circumstances. 
  • reticence to disclose changes in circumstances for fear of a loss of face, or fear this may have an impact on existing custody arrangements.

So, as a mediator, I can encounter parents and their relatives fighting over a child for access or control with protective orders in place arguing about visitation rights, child support, and a whole host of conflicts over what is in the best interest of their child.

At times they may come to me with what may seem like they are tantalizingly close to agreement because they produce pieces of paper representing unsigned agreements. They get close but do not sign any agreement and as soon as they leave a mediation they revert to being dysfunctional. Or, maybe they just cannot close a deal.

Peoples circumstances coming into a mediation are too numerous to list.  Gaining the parents confidence, trust and willingness to communicate their many issues is a double edged sword. On one hand, information provided may be really useful towards resolving an issue. However on the other hand, information overload can sometimes result. Or they may communicate so many issues they create in themselves unachievable expectations which spoil mediated results. In all cases complexities have to be simplified and interrelationships established within achievable boundaries. Mediation does not solve the myriad of issues which arise in partnering a child through adulthood but can be utilized on mutually agreed upon priorities with, hopefully, a potential and concomitant improvement in communications and movement towards being collaborative parents.

In Hawaii, and I hope everywhere else, the family court concept for parenting is “in the best interests of the child”. When I start a mediation I emphasize and keep parents focused on the concept. At the outset and almost universally parents agree this is the principal they wish to achieve. Unfortunately, sometimes, to them, this means excluding the other parent because they believe the other is totally unfit. And, yes at times this might be true. It’s most unfortunate when one parent has a focus on, and utilizes a child as a means of getting back at the other parent.

It’s most gratifying when parents achieve a state where they mutually accept a partnering relationship and begin developing a plan, through problem solving because of the changed circumstances in their relationship to carry their plan forward until the child attains adulthood. However, because they start in this fashion does not mean they actually maintain it during the period of time their child is under their control.  Over time I see parents returning to mediation when their partnering starts to falter or new issues, open up old wounds or create new ones.

Another interesting factor which raises many issues are physical and legal custody questions. Too frequently a parent sees these two factors as weapons. There is a lot of play and time spent on these two questions. At times they become so burdensome to parents they lead to near or actual impasse. At other times they not only lose focus on the best interest of the child, they actually give up progress they have made in other aspects of partnering their child through the formative years. I don’t dispute the criticality of the custody issue, it’s the cost when misused.

When the parents have gone their separate ways the ideal mediation in child custody and parenting planning come from parents who actually mean what they say and work together to achieve what both can agree upon as in the best interest of the child.

As a mediator and parent of four children I agree with, and fully support the concept of best interest of the child. I am glad to help parents attain an agreement to co-parent which results in both of them being fully involved as their child grows. I accept when they agree to less. In either case I love an image where both parents are present for their child’s graduation or Eagle Scout or like achievement with the child thanking both of them for the part they played in preparing them for those moments through partnering.