Divorce Mediation and Family Issues
Ending a marriage while raising minor children is difficult on every level – emotional, financial, social, familial, physical and, for many, spiritual. Along with the normal emotions associated with a failed relationship and the legal issues which must be sorted out in any divorce, the impact on the children adds almost insurmountable complexity. This article offers perspective on some of the issues and interpersonal dynamics which might arise in divorce mediations with minor children.
This article is a companion to my article about expectations concerning divorce mediation in California for couples without kids.
What should we tell our children about our divorce?
Every family situation is different and there is no correct answer that suits every couple. Here are some of the variables to evaluate:
- The age and sophistication of the children,
- The relative calm and cooperation in the marriage even as it is ending, and
- The level of breakdown in the status quo before couples come in for their first mediation session.
Some couples, in their initial divorce mediation, talk through considerations about how and what to tell their children about their pending divorce. I believe this is a worthwhile practice to consider whenever practical.
How are custody and visitation resolved in mediation?
This article deals with couples sharing the responsibility for the physical rearing of children in a divorce. I wrote another article which focuses on how a couple’s legal responsibilities for their minor children can be addressed and resolved in divorce mediation. That article includes topics like the definitions of legal custody, joint legal custody, sole legal custody, etc. For the purpose of this article, I assume the divorcing couple chooses joint legal custody and focus my commentary on the details of shared physical custody and/or primary physical custody and visitation.
What is shared physical custody and how is it different from primary custody and visitation?
Shared physical custody means that for the most part, the child/children live a substantial amount of time with each of their parents. The implication is that the children basically have two homes. Generally, both co-parents with shared physical custody arrangements purchase clothes for the children and both have a dedicated place for their children to sleep. It does not necessarily imply that the amount of time spent with each parent is exactly equal or even approximately equal. In a meaningful number of these arrangements, one parent has to travel for work or has other work-related duties which impact a static 50/50 schedule. Their actual visitation time schedule is often dictated by outside forces like rotating shifts, mandatory overtime requirements or work travel schedules.
The common alternative to shared physical custody is that one parent has primary physical custody and the other parent has visitation with the children. The bulk of the children’s clothes and personal effects would tend to be at the home of the parent with primary physical custody. The children then spend time with their other parent and if that visit is overnight, the children bring clothing with them. In a primary physical custody/visitation arrangement, the children may spend almost as much time with the non-custodial parent as with the parent with primary physical custody. They may even have their own room and their clothes and personal effects at both houses. The main difference is the implication that the parent with primary physical custody is the one who carries the ultimate burden as parent. They are often the one who is receiving child support from the other parent because they incur the major childcare costs (they shop for their children’s clothes for example). They also tend to be the one who will take the children to their doctor’s appointments or take a day off work to tend to the child when the child is ill.
How does a couple’s expectations about parental roles impact visitation negotiations in mediation?
A couple with minor children going through divorce mediation will typically fall into one of two categories when dealing with shared custody and visitation:
- They have a general parenting approach they genuinely agree on or
- They do not even agree on their basic approach to parenting. Both are good candidates for mediation, but for different reasons.
It may seem obvious at the onset of mediation to determine which category any particular couple falls into but it is often difficult to tell. Many couples think they generally agree about their respective roles as co-parents, and present themselves in that fashion. However, their level of actual agreement is superficial and it is not until the mediation process is well underway that it can be determined which couple is in which category.
Couples and families who truly agree about their respective parenting roles tend to have an overall approach when they begin mediation which they utilize throughout their negotiations. These couples tend to use mediation simply to organize the details of their visitation and primary custody arrangement. In this situation the roles agreed upon at the end of the mediation process are the same or nearly the same as at the beginning. Typically with a couple in this category we can sort out an entire custody and parenting plan in one session.
On the other hand, the couples without deep agreement regarding parenting roles tend to have conflict when sorting out the details of their parenting plan because they do not really see eye-to-eye about their respective roles in rearing their children. Couples who are in systemic conflict over their respective roles as co-parents need mediation to first help them come to an understanding of their roles going forward. This can be difficult because a degree of candor and frankness is required that the couple has avoided during their marriage. If they do not resolve it in divorce mediation, they can expect that there will be collisions and breakdowns over and over again as the children grow up.
What role do children have in mediation concerning their visitation?
I think as a general rule, seeking input about visitation from young children and even preteens is problematic. They tend to either be too young to offer valuable input or skew their answer depending on which parent is asking for the input… usually to align with the parent who is asking but sometimes to lash out at one parent or the other.
Once children reach puberty, their input is often helpful and I will include them in the mediation process if requested by the parents. I would guess that most older teenagers have their own point of view about where they want to live, attend school and so forth. Couples with teenage children run the risk of rebellious teenagers acting out if the teenager’s feelings and concerns are totally ignored. Normally, what I will do is communicate separately with the teenager to develop their input and assess their viewpoint and then share that with both parents at a subsequent session.
When the parents are initially in conflict about their respective roles, I try to resolve those questions through mediation first. Then, with a somewhat united front, we bring the teenage children into the process. When couples are in conscious agreement as to the limits and parameters available within their custody and visitation plan the teenagers are often more willing to accept the plan, perhaps with only some minor adjustments.
On the other hand, the whole topic of visitation is sometimes complicated when the couple believes they have a common understanding of their parental roles and a shared idea for family visitation/custody and therefore do not include their teenage children in the process. In these situations the common, but often mistaken, belief that it is mom’s role to take care of the kids after the divorce. For example, normally a stay-at-home mom assumes her role will not change much after the divorce and often the father blindly accepts this perspective as well. Unfortunately, I have seen many cases where teenage children immediately move away from their mom and go live with their dad as soon as possible after the formal move out occurs. The impact is these situations can be very serious and a follow up mediation is almost always called for if this happens.
Is there a standardized visitation plan?
Some couples mistakenly believe that there is a “normal visitation plan” which is ordered by the Court in almost all case. I frequently meet with couples who come in with a custody plan that a friend or relative has had and which they have been told is the standard approach. Some of these couples believe they are stuck with this standardized plan and come into mediation to resolve their other divorce-related matters. Other couples come in with the same misconception, but they are seeking a way to navigate around it.
It is a terrible misconception for divorcing parents to believe that there is one optimum visitation/ custody plan which the Court will utilize for their family and therefore there is no real reason to invest the time and energy to co-create their own customized plan. Courts do tend to have several standardized parenting plans or approaches which they will fall back on, but not one which will suit all families.
Likewise, it is mistake to believe that any given custody and visitation approach will continue to work for a divorcing couple throughout the child-rearing years. The benefit of private mediation is that the parents can customize their custody plan to suit their exact current situation and then later can take steps to modify it when circumstances change.
Visitation is always geared to what is in the best interest of the child and can always be modified if circumstances change. There are some common approaches that many couples adopt, but only when these plans will work best for their family.
Can we use private mediation to modify our visitation plan without going to Court?
When it comes to raising children, there is simply no way to predict too far into the future. As time passes, the circumstances at the time of divorce become less and less meaningful and consequently the initial visitation/custody plan often becomes less and less meaningful as well. Therefore, visitation plans can always be modified when both parents consent. Parents can use mediation to negotiate a new arrangement and sign a stipulation to memorialize their new plan. If the parents do not agree then they can petition the Court and get their prior custody plan modified for “good cause shown”.
“Good cause” is an intentionally vague phrase. It might be when parents enter into new relationships or new living situations. Sometimes this is when the parents marry a new partner, or other times when they move in with live-in partners, family or roommates. Often step-children enter the picture or the parent’s work hours, commute time, or other financial circumstances change. There are dozens of other factors which can constitute good cause.
Sometimes good cause has nothing to do with the change in the parents’ circumstances but deals with an alteration in the children’s behavior patterns. I have dealt with cases where loving and nurturing moms could no longer manage unruly teenage sons. I have seen doting fathers whose daughters began to rebel when they reached puberty. I know of parents of two or three young children who insisted at the time of divorce that their kids all stay together as they rotated between households. Then the parents realized that as the children grew older it was better for everyone if they were split up so they’d get one-on-one time with each parent.
Private mediation is the most expeditious way to address these changes in circumstances. In my mediation practice I encourage the parties to build into their agreement several fail-safe features to address any pending change in their custody and visitation arrangement. One measure I suggest is that each party can request formal mediation whenever they feel they need it. I take the time to explain what I have just written, that circumstances change and they need to take that into account going forward.
Another fail-safe measure is that the parents formally agree in their divorce decree to mediate before filing court papers seeking to change custody arrangements. I explain that the Judge will almost always require mediation before the final hearing on custody matters and that they can save time and money by mediating ahead of time and resolving the issue without going to Court.
What are the tax considerations of custody and visitation?
Couples who have joint legal custody and a shared visitation arrangement also need an agreement dealing with certain tax questions like who will file with the of head of household status and who will be allowed the dependent child tax deduction. These can be resolved very expeditiously in divorce mediation in a manner which is best for the family and not best for the IRS.
How does mediation help us plan vacations and holidays?
In my mediation practice couples occasionally need outside help in agreeing on scheduling vacations and major holidays. Sometimes they have the basics worked out but need expert facilitation when they try to dive deeper into the details (pick-up times, drop-off times, exchange locations, who does the driving, what notice will be given and so forth). Other times they have more complicated issues like concerns about their ex spouse’s new relationship traveling with the kids, organizing sleeping arrangements for blended families when they travel or arranging out-of-state travel plans. Sometimes it is as straightforward as who will take the kids to Disneyland first.
All of these couples save money by using private divorce mediation rather than hiring lawyers and threatening to go to Court.
What financial issues can we use mediation for?
Negotiating child support for a divorcing couple can be very difficult. It is nearly always more expensive to hire lawyers to fight over support amounts than to resolve the support payments through mediation. In my practice, we can use the standard support calculator programs as well as factor in other more or less intangible factors to find a fair and reasonable amount of child support.
I have never seen a Judge order the parents to pay for after-school enrichment activities, and I have also never seen a Judge reject a compromise by the parents which includes a financial allocation for after-school enrichment activities. Resolving these important, but relatively low-dollar concerns is one of the real tangible benefits of using mediation for your divorce.
Graduation/Senior Prom and other Milestones
The cost for attending senior proms and graduation dances are now a major expense for parents. A significant portion of my divorce mediation clients address these questions in their overall custody/support mediation process.
Once a child reaches 18 and/or graduates from high school, child support usually terminates. Many conscientious families, though, want to help their children attend college and set up a program in their divorce mediation to address these concerns. I know from personal experience that the cost of paying lawyers to advocate and argue for support can often pay for a semester of schooling and so strongly urge couples to use mediation on these issues.
There are many important topics to resolve when a divorcing couple has minor children. Issues related to custody and support have enormous impact for families. While some aspects of these decisions may be obvious, others are more subtle. Most, if not all, of these issues can be expeditiously explored and resolved in divorce mediation. The result paves the way for a smoother road ahead for children and parents long after the divorce is final. See my article on divorce mediation for couples without children here. See my article on divorce mediation for couples without children here.