Fact Sheet: Divorce and Child Custody

Divorce is a very sad fact of life, and a possible result of escalating family conflict. A divorcing couple's task is to work through their emotions and learn to communicate with each other so that they can create an agreement that serves both parties' needs as well as possible. If the couple has children, this process becomes crucial for their children's well being. However, a divorcing couple is often dealing with intense emotions like anger, hurt, and blame. These emotions often interfere with the divorce proceedings. Experts agree that the divorce process a couple chooses can determine whether they end their relationship constructively or destructively.

Courts

Court systems are inherently adversarial, promoting a winner and a loser. Couples tend to channel their anger into trying to win at all costs, escalating the conflict, thereby increasing the pain for all involved.

Mediation

Mediation is a process in which couples work with a trained mediator to identify all the issues that need resolving for a legal separation in New York State. The mediator helps the couple resolve these issues in a win/win framework that enables people to end their relationship as husband and wife with dignity while maintaining their future roles as parents. When compared to litigation, mediation is faster and less expensive. Mediations’ advantages lie in the client’s control of the process, their flexibility in making fully informed, customized decisions, and their ability to deal with each other in a manner that has personal integrity for them. Additionally, successful mediation gives couples a model to use in future disputes. Although divorce mediation should not to be confused with family counseling, the open communication that occurs during mediation can have a therapeutic effect on both parties.

When two people are involved in a homosexual marriage or long-term relationship, their break-up can be especially difficult because they are not protected by marriage laws and are on their own when it comes to dividing property and deciding custody of their children. Mediation is often these couples' best option.

Children and Custody

Mediation is particularly helpful for custody disputes. The divorce process can be stressful for children. It is important for parents to build a new relationship with each other so that they can co-parent effectively after their divorce. Furthermore, a divorce can be an opportunity to teach children how to handle their own conflicts in the future. Not surprisingly, the parents' problem-solving styles are often imitated by children.

If a divorce process goes on too long, it can diminish energy for parenting and drain bank accounts. It is important for parents to move beyond their self-interests and recognize their mutual interest in their children's welfare. Although court proceedings will try to determine what is best for the children, the parents probably have a better idea of their children's needs. Parents can use mediation to design a custom custody and visitation arrangement instead of giving up control to the court, which may impose a generic plan.

Example:

Bob and Kathy are seeking a divorce, but are worried about the long-term effects on their two small children. In an effort to make the process as amicable as possible, the couple enlists the help of a divorce mediator, who helps them decide not only how to divide their belongings, and financial assets, but also how to arrange custody so that the children get to see both their parents as much as possible. They also agree on methods to deal with possible disagreements in the future, so that the children are not hurt in the process. All of this is done by people who understand their own situation and the children's needs best – the parents – rather than being left up to a judge to decide based on the input from a social worker or a psychologist who might meet with the children and the parents for a few hours before making their recommendations.

Application:

Divorce mediation is becoming an increasingly popular method for dealing with divorce. Many states require couples to try mediation before going to court to obtain a divorce. Even when mediation or negotiation is not required, these processes provide so many benefits over court-based divorce that it is often worth trying first. If it does not work, litigation remains as a back-up approach.