Options for resolving disputes among divorcing parents

By Craig Silverman/DAILY NEWS CORRESPONDENT
GHS
Posted Apr 09, 2009 @ 04:34 PM

This past winter my wife and I took our daughter to swimming class at the local YMCA. While we were there we ran into a friend of our daughter's whose parents had recently divorced. Both parents attended the class. During these swim classes they seemed civil and sat within reasonable proximity to each other. I later learned, however, that appearances can be deceiving.

Unfortunately this peaceful co-existence at their child's activities was to come to an abrupt end. I learned soon after the end of the swim class session that the father had filed court papers seeking modification of their parenting arrangement, and the case quickly became contentious. While the facts of each divorce case may differ, the underlying issues are often the same: spending time with the children.

A very wise judge, who has since retired, once said, "Husbands and wives may come and go, but parents are forever."

Now that spring is here and, with it, baseball, soccer, dance recitals, graduations and other activities, resulting in many scenarios like the one described above, children of divorce often wind up caught in the middle, and they begin to ask who's coming to their activities.

Parents have to find ways to resolve their parenting issues, always being guided by what is in the best interest of the child.

As a divorce lawyer who represents both husbands and wives, I often see parents vying for more time with their children, and this competition creates conflict which can put children in the middle. So, what are some options to resolve these conflicts?

Parenting coordinators

Most divorcing parents sign a Separation Agreement (this is a technical term - it's really a divorce agreement) - a contract that outlines the terms of their divorce. It will often have a provision obligating the divorcing parents to take any disagreements about parenting that they cannot work out on their own to a parenting coordinator before going to court.

Parenting coordinators address such issues as pick-up and drop-off times, holidays and child care duties. Often the parents are so busy fighting each other that they fail to consider what's best for their children. Parenting coordinators are people who have expertise in family law and the psychological impact of divorce. They may be psychologists, social workers, attorneys, or professional mediators. In Massachusetts most judges do not believe that they have the authority to appoint a parent coordinator so their appointment must be agreed upon by the parties. Their services are paid for by the parents; often the cost is divided equally, but that varies case by case.

The parent coordinator mediates issues when the parents are unable to negotiate those issues successfully on their own. The parenting coordinator is often given the power to decide what the result should be if the parents remain deadlocked, even after mediation efforts. Family law attorneys and online resources can help in choosing the right parenting coordinator.

While a court has the ultimate final say (and can overrule the parenting coordinator's recommendations), a parenting coordinator can reduce the need to go to court and therefore reduce child-related conflict for divorced parents. Any method of dispute resolution that resolves child-related issues outside of Court is a benefit to those involved.

What happens if either there isn't a provision for a parenting coordinator or one party doesn't agree to use a parent coordinator? Does that mean that the parents have to run to court over each and every parenting issue?

Mediation

Mediation is a form of alternate dispute resolution (ADR) in which a neutral third party, the mediator, assists parties to negotiate an agreement. One advantage of mediation is confidentiality. Mediation also allows the parties to step away from the acrimony of the courtroom to resolve the dispute quickly and inexpensively. Mediation allows parties to speak for themselves, which fosters creative ideas, allows people to address emotional issues, and arrive at practical, long-term solutions that may not be achievable in litigation.

In addition to private mediation firms, there are nonprofit community mediation centers for people who cannot afford to hire a mediator. Mediation can be conducted with or without lawyers present, but most mediators recommend that the parties consult with a lawyer at some point during the mediation process; the extent of the involvement of a lawyer is up to the parties in the mediation.

Collaborative law

Another form of dispute resolution is Collaborative Law, in which lawyers are involved from the beginning but the two parties and lawyers agree that the lawyers will be used only for out-of-court discussions. In other words, if the collaborative negotiations fail and the case needs to go to court, the parties will hire new counsel. This style of practice was invented in 1990 by Stu Webb, a Minnesota family lawyer, who felt that traditional litigation was not always helpful to the parties and their families, and often was damaging. Since its inception, Collaborative Law has spread through most of the United States, Canada, Europe, Australia, England, Switzerland, France and several other countries.

In a collaborative case, the parties work toward reaching a settlement through a series of meetings in which both the parties and counsel attend. These meetings are called four-way meetings even though there are often more than four people present. For example, sometimes a neutral and independent expert is invited to join the discussions. The focus of the four-way meetings is to identify the parties' goals and underlying interests, and look for options that enable both parties to get their needs met.

All three of these processes - mediation, collaborative law, and the use of a parenting coordinator - allow parents to formulate a parenting plan, voice their opinions, and participate directly in the resolution of parenting issues. Litigation stifles the parties' voices - parents can then communicate only through their lawyers - and the voice of their children usually cannot be heard at all.

These alternatives to litigation are not appropriate for every case or every situation, and collaboration cannot succeed if one of the parties is not willing to participate in the process. In those situations, as well as in cases in which there is domestic violence or other exigent circumstances, the parties often have to go to court - either as their first or ultimate course of action.

Court (Litigation)

Once the decision has been made to file an action in court, the process moves at a pace determined by the court. It could take as long as 14 months, and sometimes longer; deciding custodial arrangements is not an issue that is resolved quickly.

Once a case has been filed, the court will usually order that the parties maintain the status quo unless and until it can determine there is a good reason it should be changed. However, there is no longer a presumption that custody is automatically awarded to the mother; the courts do not automatically favor one parent over the other.

When determining the parenting arrangements, the court will consider what the arrangements have been, and, if the child is old enough, the child's wishes.

Once the case is in the court system, a variety of people may become involved in the decision-making. The parties are sometimes required to meet with a Family Services Officer, who may report to the judge on the substance of those discussions.Family Services Officers have only a brief time - usually less than an hour - to meet with the parties and make a recommendation to the judge.

If the case is unusually difficult or contentious, the court may appoint a Guardian Ad Litem (GAL), whose job is to investigate and report to the court. The cost of these evaluations is usually shared by the parties. The GAL is usually a psychologist, psychiatrist or some other family trained specialist in private practice who focuses on custody evaluations.

If these preliminary stages do not resolve the custody issues, the judge will set a trial date. Despite the expense and the acrimony that ordinarily result from taking the case to trial, this may be precisely what's needed when the parties cannot agree on arrangements for their children.

So which process should you use? There is no easy answer; there is no right and wrong. Some questions to ask in making this determination are: Do I need legal advice and representation during this process or can I represent myself? How quickly do I want or need this resolved? In making these decisions, parents should remember that choosing one process or another does not have to be an irrevocable decision. For example, a case may be headed for trial, but it is never too late to try mediation or bring a parenting coordinator into the picture.

None of these processes is a panacea. Each has its advantages and disadvantages. Getting professional advice about which process to choose is a good idea, and for people who cannot afford even that much legal advice, the state bar association can provide assistance. Deciding who is coming to a child's baseball game or soccer practice may seem like a small decision, but the accumulated impact of those decisions - and how they are made - can have a lifelong impact on children. And thus it is difficult to overestimate the value of making the decisions thoughtfully and well.

Craig Silverman is a MetroWest resident and lawyer with Boston Law Collaborative and has been practicing for over 10 years; he has experience in litigation, collaborative law and has been trained in mediation. Information on his practice can be found at www.bostonlawcollaborative.com.