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

Cynthia M. Fox

A common question asked is 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. An example is 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. Next week, 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.

For over 25 years Cynthia M. Fox has focused her practice in family law, with a particular emphasis on matters relating to the dissolution of marriage: divorce representation and mediation, child custody and child support. She is a native St. Louis and a graduate of the Washington University School of Law, Class of '73.

Cynthia M. Fox can be contacted by phone at (314)727-4880 or
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