Addressing the Best Interests of the Child in the Mediation Process

Addressing the Best Interests of the Child in the Mediation Process By Sanford E. Balick, Esq.{5:30 minutes to read} As discussed in my last two blogs, when devising solutions to parenting issues like custody and visitation, courts are guided by a variety of considerations, all under the heading of “best interests of the child.”

The courts approach the best-interests analysis seriously and struggle to do the right thing in a given situation. Yet, in reality, the child is a stranger to the court. A child’s personality must be conveyed through parental testimony and/or through the child’s own attorney. Divorcing spouses may have a limited ability to shape the ultimate parenting plan if the dispute resolution is left to the court’s efforts.

Disagreements over parenting arrangements are routine subjects for mediation, and except in the most entrenched cases, parents discover that their differences may be worked out in a variety of ways. A stranger to mediation would understandably want to know by what magic these seemingly intractable issues get worked out. It’s not so much magic as it is the willingness of the parties to listen to one another and to engage in a way that is open to practical considerations. It is facilitated by the mediator’s skill in, among other things, breaking down the issues into component parts that are much easier to discuss and resolve.

By way of examples, the mediator may illustrate for the parties the manner in which a year of parenting decisions may be framed and considered. A typical approach is to first select an overall timeframe. What’s the most convenient planning horizon: one based on the school year (September-August), or a calendar-year approach (January-December)?

Once a planning horizon is agreed upon, parents have essentially structured the scheduling process into a series of sub-issues. These are easier to frame, discuss and resolve. Typical examples include:

  • How will typical weekday overnights be handled?

  • How will days off from school be handled (both planned and sick days)?

  • What about major school vacation days (e.g., winter and spring breaks)?

  • How will major holidays be handled? (For example, the Thanksgiving holiday may be divided in any number of ways, starting with the location of the main Thanksgiving dinner.)

  • How will family vacations be handled? (There will likely be two vacation schedules that will figure into this decision.)

Larger questions may also be addressed, including:

  • What mechanisms may be built into the plan to accommodate the changing needs of the children as they grow from childhood into adolescence?

  • How are routine and non-routine workplace scheduling issues to be handled (e.g., expected or unexpected travel for work)?

The number of sub-topics is quite broad and limited only by what the parties and mediator can identify with reference to family particulars. The important point is that when the issues are addressed one-by-one, the calendar begins to fill out, and the dates and occasions requiring special arrangements are identified and may be planned for.

Cooperation on parenting issues helps to build trust over time, even where it has otherwise been lost in the course of the marriage.

While economic factors should not be the sole motivating element favoring the mediation process, the cost of mediation is almost certainly much less than the remarkable expense of marching to trial and fielding an array of experts in the hope of persuading one’s own interests and those of the child are one in the same. It may be a punishingly expensive contest, and as with many contests, there are no outcome guarantees other than the fact that there will be a winner and a loser.

Assuming a parenting plan is part of a Settlement Agreement or Stipulation, submitted with other required divorce filings, New York Supreme Court justices and hearing officers will pay special attention to your parenting plan. While the court will seek to assure itself that the child’s best interests are served by the Agreement, parental voluntary settlements are, by and large, respected by the courts.

Parents may find a kind of insurance in the fact that the court’s role as keeper of the child’s best interests cannot be contracted away. Should things deteriorate, an aggrieved parent is free to bring concerns to the court’s attention.

Sanford (Sandy) Balick, Attorney & Mediator, NY Sandy Balick signature
Sanford E. Balick, Esq.
Founder & Principal Mediator
Consensus Point Mediation, LLC.

Phone: (646) 340-3434
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