Parents are encouraged to reach an agreement between them concerning the parenting plans and timeshare schedules pertaining to their children. If they are unable to do so, a custody order may be made by the court, but this is not ideal for anyone. In fact, the following is an excerpt from an article by Hon. Thomas Trent Lewis, Supervising Judge Family Law Division of the Los Angeles County Superior Court titled Helping Families By Maintaining A Strong Well-Funded Family Court that Encourages Consensual Peacemaking: A Judicial Perspective:
In approximately 90% of cases in the United States where parents are no longer in intact romantic relationships, they are able to agree on a parenting plan and timeshare agreement without forcing things into litigation that can devastate the relationships of parents, children, and extended family members.
All child custody decisions are to be based on the best interests of the children, no matter the details of the case. Sole custody arrangements may consist of exclusive custody, meaning both legal and physical custody for one parent. Sole physical custody means that the child resides with and is supervised by one parent. Sole legal custody gives one parent the exclusive right to make decisions about the child’s health, education, and welfare.
Joint custody arrangements can consist of pure joint custody, in which both parents care for and make decisions about the child; joint legal custody, where both parents have the right and responsibility to make decisions about the child’s welfare; and joint physical custody, where the child lives with both parents in accordance with a timeshare schedule.
Generally speaking, shared parenting of some sort is in the children’s best interest. According to clinical child psychologist and researcher Joan B. Kelly, Ph.D., there is no evidence that parental conflict is any different in primary custody situations versus shared custody situations. In other words, do not avoid shared custody arrangements because of parental conflict, especially since the research shows that children tend to be more satisfied and excel in shared custody situations.
Shared Parenting is not the same as Equal Parenting. There is no evidence to suggest that Equal Parenting is in the best interest of the children. Shared Parenting means that no parent has less than a 33% timeshare. There is little doubt that children are more satisfied and excel when they are loved and cared for by both parents in a shared parenting arrangement. This should be the focus of mediation sessions with Mark B. Baer.
Almost all parents claim that their children mean more to them than anything else in the world. Inadvertently, many of those same parents cause their children trauma. High levels of parental conflict can cause childhood trauma. In marriage or divorce, it is the chronic and/or toxic parental conflicts that are extremely harmful to children – not divorce itself.
A great deal has been written about the fact that when spouses feel compelled to win their arguments with each other they end up losing their relationship. If the need to win arguments was destructive to the marriage, then fighting to prove a point or win an argument as co-parents is going to be even less well-received.
Conflict is a fact of life and occurs for a variety of reasons, such as differing perspectives, priorities, or solutions to a problem. For example, there are different ways to parent kids. Parenting styles are a matter of perception. Children benefit from your differences as much as they benefit from your similarities. Unless your parenting differences are endangering your child, then don’t allow those differences to become a source of chronic/toxic conflict. Because we know for sure that chronic/toxic conflict is distressing – and often traumatic – for kids.
Healthy conflict is inevitable and, when handled skillfully, is growth-producing for kids. Children need parents who are bigger than their problems. Children benefit when co-parents resolve conflict and model mature problem-solving. The end goal is to be better parents to your children and manage conflict constructively.
The American legal system unintentionally aggravates conflict in divorce situations, even though models that are designed to reduce conflict – such as mediation and other collaborative approaches – are available as alternatives. Parents need to understand that what they do, say, and how they act toward the other parent has long-term consequences. The things people do with or without the assistance of their legal representatives have consequences that will last for generations to come.
It is worth noting that the American Bar Association has long been aware of the connection between custody battles and an increase in domestic violence. In fact, as many as 50 percent of disputes relating to child custody involve domestic violence. Furthermore, the following excerpt is from a book titled Marital Separation and Lethal Domestic Violence, which is the first book to investigate the effects of participation in separation or divorce proceedings on femicide (murder of a female), femicide-suicide, homicide, and suicide:
“Collaborative proceedings include mediation and representation by lawyers who practice collaborative law. Mediators do not make decisions on outcomes or impose solutions on the parties. Instead, they facilitate communication and negotiations between the separating parties who jointly make decisions on outcomes that usually are or tend to be positive sum (win-win).
Collaborative lawyers use nonadversarial negotiation tactics, emphasize joint problem-solving, and obtain in writing a commitment from the parties they represent not to attempt to get what they want by threatening to engage in litigation/go to court. If they do, their lawyers, by prior agreement, will no longer represent them.
Adversarial proceedings are those in which the parties and the lawyers who represent them conceive of outcomes as zero-sum (win-lose), perceive each other as enemies or adversaries, and use struggle win-lose tactics appropriate for this perception.
Choice of proceedings (adversarial or collaborative) is fateful because victims and perpetrators of all three types of sublethal and lethal domestic violence tend to be concentrated among those who participate in proceedings that escalate rather than deescalate conflict. Participation in adversarial proceedings increases the intensity of conflict…
Participation in divorce mediation decreases the intensity of conflict and consequently the risk of fatal and nonfatal domestic violence….
Family lawyers can be located on a continuum with collaborative lawyers who decrease the intensity of conflict at one end and highly adversarial lawyers who increase it at the other end….
In a survey conducted by Hadeem and Salem (2006), adversarial lawyers represented a fairly large proportion of the 219 family lawyers included in the family law practitioner sample they selected…. Schneider and Mills (2006) analyzed data from their survey, and this was one of their major findings: ‘Compared with civil, criminal, commercial, corporate, property, and other lawyers, family lawyers had the highest percentage of unethically adversarial lawyers.’… Ethically adversarial and unethically adversarial lawyers accounted for almost 40% of the family lawyers in the sample. The corresponding figure for all lawyers is 33%. If the potential for sublethal and lethal violence is greater in destroyed relationships than in continuing collaborative relationships, than lawyers in this sample may be unintentionally increasing the risk of both types of violence ‘by engaging… in behavior… that destroys relationship(s).’
The specific context for relationship-destroying negotiations is an adversarial system that, not infrequently, produces fateful zero-sum or negative sum-outcomes for couples caught up in its heavy machinery. In this context, ‘uncertainty about the decisions made by judges in any particular case motivates family lawyers to prepare and process all cases as if they were going to court.'”
Ripping families apart just because marriages are over has severe and lasting consequences to the former spouses, their children, the family, future generations of that family, and society as a whole.
Basics of Creating a Parenting Plan
In California, either parent can have custody of the children, or the parents can share the responsibility. Unless the parents enter into a parenting plan on their own, the judge makes the final decision regarding custody and visitation. Nobody knows your situation and your children’s personalities and needs better than their parents; therefore, it is generally recommended for parents to reach child custody and visitation arrangements (parenting plan) on their own. In fact, the judge won’t normally decide such things until after the parents have tried to reach their own agreement through mediation or similar processes.
Under California law, there are two types of custody: legal custody and physical custody. Legal custody refers to who makes the important decisions regarding the child’s welfare such as health care and education, whereas physical custody refers to the timeshare schedule. Both legal and physical custody can be sole or joint. Joint physical custody means that both parents have significant periods of custodial time. Sole or primary custody means the child lives exclusively or primarily with one parent and the other parent has visitation time.
Joint physical custody does not necessarily mean the child spends an equal amount of time with both parents. However, unless the child spends a significant period of time with both parents, one parent is bestowed the title of primary custodial parent. Often, parents agree upon joint legal custody and not joint physical custody. This means both parents share equally in the responsibility in making important decisions about the child’s life, and the child resides with one of the parents more of the time. In this case, the parent with less of a timeshare has visitation with their child.
Types of Visitation Schedules
Since every family is unique, visitation schedules vary and are created taking into account the child’s needs and interests, the parents’ individual situations, and other relevant factors. Visitation can be according to a detailed schedule that clearly defines the dates and times the children will be with each parent, including holidays, birthdays, Mother’s day and Father’s day, and vacations. The parents may, instead, elect to use a reasonable visitation schedule, which is more of an open-ended visitation schedule. For obvious reasons, this type of plan works best with parents who co-parent well with each other and can be flexible. Create a parenting schedule with the degree of specificity needed to try and prevent chronic and/or toxic conflict, rather than one that will generate it. Should such conflicts and disputes later arise, remember that mediation is a process designed to help you to problem-solve and work through such things and disagreements.
When real abuse or neglect is occurring such that the child’s safety is at issue, particularly when certain types and levels of domestic abuse are involved, supervised visitation may be necessary. In this case, the visits with the other parent may be supervised by specified adults or by a professional monitor. In cases where the child’s safety and well being is threatened just by virtue of seeing the other parent, that parent may not be awarded any visitation rights if that is found to be in the best interests of the child. This is particularly applicable in cases of child abuse, child molestation, and where the parents otherwise pose a danger to their children.
Pasadena Child Custody & Parenting Plan Mediator
The California courts do not automatically give custody to the mother or the father, regardless of the age or sex of the children. As Mark Baer explains in his article Parents Should Think Twice Before Engaging in a Custody Battle Over Their Children, when court intervention is involved the judge is the only person responsible for assessing what is and isn’t in the child’s best interest. However, since judges have such limited knowledge of the family, their subjective determination may or may not actually be in the best interest of the child.
Not only do judges handle a great many cases and therefore not have the ability to develop a clear understanding of any given family, but their decisions are only based upon the “legally relevant and admissible evidence“ submitted to the court. Among other things, judges and juries are “triers of fact.” In other words, it is the job of a judge to determine the facts based upon conflicting evidence and then to apply to law to the facts, as found by them. Of course, such factual findings are based upon the “legally relevant and admissible evidence“ before them, not all the facts.
When parents are unable on their own to agree on something pertaining to their children, it’s frequently because there is a difference of opinion as to what is in their child’s best interest. While each parent may sincerely believe that what they want is in their child’s best interest, not all beliefs are fact based, regardless of how sincerely held they may be. There are different ways to parent kids. Parenting styles are a matter of perception. Who’s to say that yours is “better”? “Better” is in the eye of the beholder. Unless it’s something that is endangering the child, some perspective is in order. Mediation can help parents to find common ground, build bridges between them and problem solve. In other words, mediation helps parents reach durable agreements that address the interests and needs of both parents and their child.
To learn more about child custody and visitation, please contact Pasadena visitation mediator Mark B. Baer today!
