In our conflict oriented society, too often parents who are separating resort to arguing over that which they most need to cooperate about, their children.
Friends and family members tell them to get a good lawyer and fight. that is often terrible advice.
Child custody questions, as well as questions concerning visitation and support of children, are usually not win or lose issues. There may ultimately be a winner in some drawn out court battles regarding custody, but there can also be more than one loser – the children. Except in cases of neglect or abuse, where chldren must be protected from an abusive or irresponsible parent, children should be protected from the stress and conflict that inevitably spills over into their lives because of litigation. Too often parents think about how they feel rather than about what is best for their children. We know from much experience and many studies, that what children of divorcing parents need most is to be protected from conflict.
It should also be understood that it is the intention of the law, and therefore the intention of the judge hearing the case, to do what is in the best interests of the children; not to decide who is a better parent or to try to right past wrongs. With the exception of cases where abuse or neglect are involved, a court will presume that it is in the best interests of the children to have the best relationship with each parent which is possible under the particular facts of the case.
Mediation allows an opportunity for parents to discuss and agree upon an arrangement which is primariy in the best interests of their children, and which considers work schedules, special activities, and the aptitudes of each parent to meet particular needs of the children. There is nothing in the law which requires that one parent have custody and the other parent not have custody. Whatever works for the family and meets the needs of the children is perfectly permissible, and any judge hearing the matter will be delighted to learn that the parties have, themselves, negotiated such an arrangement.
There is no question but that children do best when their parents respect each other and speak well of each other, even if they are no longer going to be married. It does great harm to a child to overhear one parent speaking badly about the other parent, who is, after all, someone whom the chld loves dearly.
Also, children do best when they receive the same basic instructions from both parents, and cannot play one parent off against the other. The only way this can happen is if real communication takes place between the parents. Mediation offers a context where parents can agree upon many details which a judge cannot address.
Mediation can and should be a way for both parents to win; and more importantly, for the children to win also.