Question & Aswers about Divorce Mediation

Child Custody and Mediation in Rhode Island

Will it be hard on our children if we agree on joint custody?

This depends a lot on your relationship with each other. If you can minimize the conflict between yourselves, you will be able to make transitions smoother for your children. Although a united front may not be possible, you should both make an effort not to criticize the other parent in front of the children.

Ideally, although basic routines (bedtime, study time, etc.) should be relatively similar with each parent, your child will learn that in reality there are different rules about some things at each parent’s home. This is quite normal.

At first, any change will be somewhat difficult for your children and may lead to some resistance. That’s because most children want their parents together, and as they visit each parent, they may feel disloyal toward the other. They may even feel somehow responsible for the breakup. The two of you will want to emphasize that the divorce is not their responsibility, and that it’s acceptable to enjoy seeing each parent in separate surroundings.

In all likelihood, as your children adjust to the idea of having a relationship with each of you in separate surroundings, they will be just fine. Most children will generally get comfortable in both places and will quickly discover the advantages (and disadvantages) of each home.

Each of you probably has different ways of parenting, but you need to be predictable and fair, and not be drawn into competition with the other parent. When your children stay with you, try to include ordinary routines, privacy, shared activities, and time to talk quietly and to make plans.

Does the child's age affect which parent gets custody?

At one time the courts automatically granted custody to the mother if the child was under five years old. This is no longer true, although some states and some judges still take the age of the child into consideration as one factor in determining the best interests of the child. For instance, if your child is a teenager, some judges might determine that it is in his or her best interests to be with the same sex parent. You and your spouse know your child best, and you will be able to make the best plan for your child.

That’s why mediation is a better choice. Neither parent has to worry about the inclinations of a particular judge. The parents work out the best arrangement based on their own preferences and unique circumstances.

Should we let the children decide which parent they want to stay with?

While some courts do take the children’s preferences into consideration (in Pennsylvania and Texas as early asage12, Oregonat14, in some other states at age 16), it is never advisable to ask your children to take sides. In our individual psychotherapy practices, we have worked with adults who suffered severe shame and anger as children because their parents put them in the middle. It is important that you present a united front under these difficult circumstances.

The age of your children will affect your agreement, but no matter what you agree on, it is not unusual for teenagers to want to have a say about where they spend their time. Talking to your teenager objectively about how she prefers to schedule her time is very different from asking her which parent she prefers.

This is where a flexible attitude on your part in creating the separation agreement comes in handy. Include a paragraph in the agreement to mediate any changes in the parenting plan if modifications are needed that can’t be made amicably.

See also Question 21 in Chapter 1: Should we bring our child to mediation sessions?

I adopted my stepchild when I married her mother. Must I give her up now that we're getting a divorce? What can I negotiate in mediation?

This comes up often with us since about half of adoptions are stepparent adoptions. If there was a legal proceeding in which you adopted your stepchild, you have all the rights and obligations of a biological parent. Like any other parent, you will negotiate parenting arrangements in mediation that will include custody, visitation, and child support.

In contrast, if the “adoption” was unofficial, very few states will require you to support your stepchild, and most states will not recognize your right to visit. In mediation, however, you may be able to arrive at a mutual understanding for future visitation with your stepchild, perhaps in exchange for helping with ongoing expenses.

How should we arrange where our children spend birthdays, holidays, and school vacations?

There is no rule. In mediation, the two of you can work out your own unique schedule. As with all parenting arrangements, each of you should be realistic about the time you have available and the events that are important to you.

If you and your ex-spouse have a relaxed relationship, you may be comfortable with a more general plan about special occasions, since changes will be easy for you to work out. In the event you are a high-conflict couple, we encourage you to work out all the details in advance.

Some of the possible arrangements that can be made in mediation and described in detail in your written agreement include the following:

Children’s Birthdays

Some parents share their children’s birthdays. They agree that both can attend the party, and that each year they will consult with each other about party arrangements. Since this plan may not be appropriate for a high-conflict couple, another approach is to alternate years, so each year one parent individually holds the birthday party and has the main physical access. In this case, the other parent would have a definite number of hours to visit with the birthday child, or the parents could agree to split the birthday weekend and perhaps make plans with each extended family. Another option would be for the parent who didn’t hold the party to take the child out for a special birthday treat after the party, or for that parent to have an extra weekend with the child.

Parents’ Birthdays. Usually the child spends some or all of the day with the birthday parent. If the birthday falls on the other parent’s visitation day, the parent with the birthday should take precedence.


Some parents have favorite holidays or important religious holidays that they negotiate to keep. Other parents simply alternate the holidays year by year, that is, one year the children spend Thanksgiving with the father, and the next year they spend it with the mother. It is important to work out the schedule ahead of time so that important days can be planned and that no one feels unfairly treated.

School Vacations

Each parenting arrangement is unique. This is an area in which you can be really creative.

A mediator had one couple with children of significantly different ages. The parents decided to split visitation. Each parent would alternate weeks with each of their two children during school vacations so that each child would get a full week’s attention from one of the parents.

In the event your children are living far away from one of you, school vacations may be the one time they can spend long periods with you. This would allow each of you to spend almost equal time with the children.

But you need to ask yourself:

  • Do you want to continue with the same visitation scheduleduring school vacation as during the rest of the year, or do you want to split this extra time and each take the children for a longer period?
  • If you have to work during your child’s vacation, do you have child care available? If not, do you want to agree that your children will spend more time with you as they grow older? At what age? For what period of time?
  • Does your spouse have more time to spend with the children during vacations? Easier access to child care? Are you willing to work it out so you have more time with them at another time?
  • Do your children attend camp or engage in other vacation activities? Where will they need to stay to be able to participate?

Your final agreement will address each of these questions.

Although my spouse has moved out, he drops by unexpectedly almost every evening. The children get upset if we argue about it, but I want him to stop. What can I do?

The two of you need to work out a specific visitation schedule in mediation. If your children don’t know from one night to the next when their other parent will be there, they are set up for disappointment. “Dropping by” leads to confusion, and it may encourage your children to believe that your relationship will continue although you have told them it’s over. In the event that an unscheduled visit is necessary, the visiting parent should phone first and both parents should agree on specific beginning and ending times for the visit.

A visitation schedule is important so that each of you can plan for your time alone with your children, and so that your children will know when they can count on seeing you. It’s also important so that each of you knows when you can be free to make other plans while your ex-spouse is responsible for the children.

Our baby is still nursing. How does that affect custody and visitation?

With an infant, making a parenting plan is especially difficult. It gets easier as the baby becomes a toddler.

Obviously you both want to be sensitive to your baby’s needs. You can try prepared formula as an occasional alternative to nursing, and if your baby accepts a bottle, the father can provide himself with the proper supplies and he should be fine—for brief visits at first, and for longer ones as the baby grows.

You may need to renegotiate custody and visitation several times during the early years. If you can’t work things out together, you can always use mediation from time to time to make needed adjustments until your child is old enough for you to create a parenting arrangement that lasts for a longer period of time.

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