Question & Aswers about Divorce Mediation

Balancing different parenting values requires careful planning in mediation. One parent may have been raised in the “spare the rod and spoil the child” school, while the other spouse may not believe in physical punishment of any kind. When couples with different attitudes are living together, they can try to moderate their differences when parenting conflicts arise. Anxiety understandably arises when the parenting plan provides that the children will be alone with the more restrictive or the more permissive parent.

In one mediator’s cases, the father came from a culture where girls were very restricted in their social activities, especially during adolescence. The wife was more liberal, and in fact, this had been an ongoing source of conflict during their marriage. In mediation, they discussed their feelings about their daughter’s socializing in detail and agreed on very specific rules, with changes spelled out as their daughter got older. They agreed to return to mediation if they had future conflicts that they couldn’t resolve themselves.

If you have conflicts about different parental standards about discipline, money, proper behavior, proper dress, or anything else, your mediator will help you include specific conditions in the agreement, about how these matters are to be handled with your children.

Here is a good example of how mediation lets both of you keep control of the process. You and your former spouse can work with the mediator to establish ground rules about cohabitation so that both of you can be satisfied that your children are receiving proper care.

In negotiating the details of custody or visitation, it’s important to keep in mind that the courts are very concerned that your children see both of you regularly. Unless your spouse can prove that your live-in lover is harmful to your children, it is unlikely that the courts would approve an agreement that severely limits your right to see the children, so there’s no point in your spouse trying to establish extreme limits in mediation.

If your spouse goes to court and raises the issue of your live-in lover, the decision about when you see your children is being put in the judge’s hands. Judges’ opinions and laws on the subject of cohabitation vary widely from court to court and state to state, and you may end up with a decision that is far from what either of you wanted. So it’s clearly best to work this out in mediation.

One mediator worked with a couple who divorced because the wife felt that the husband was too impulsive and chaotic to live with. At first the wife did not want their child visiting when his new live-in lover was present, but by the time the mediation was over, she had decided that the new person kept the former husband’s household running smoothly and would be a good influence in keeping their child’s routine consistent during visits. Instead of trying to limit visitation, the wife negotiated language in their agreement that they would return to mediation to revise the visiting plan if at any time she became uncomfortable about his living situation.

Promises are more likely to be kept if your former spouse has participated in creating the parenting arrangements and negotiating child support. Planning together is one of the advantages of mediation.

You can provide in the agreement that if either of you fails to honor obligations, there will be penalties with serious legal or financial consequences. This should keep your ex-spouse in line. For example:

Visitation

• If child care is required, the spouse who fails to keep the visitation schedule will pay for child care.
• If 14 days’ notice is required to prepare your child for vacation away from home, vacation will be postponed in the event the notice isn’t provided, or the parent who fails to provide timely notice will be responsible for all transportation costs.

Child Support

• If all child support payments have not been paid, the parent will not be able to claim tax deductions.
• If the parent owes over a certain amount, the other parent will go to court to enforce the agreement through income execution (deduction from earnings by the ex-spouse’s employer).
• If the parent owes above a specified amount, the other parent will receive additional property.

Visitation is independent of child support. If your ex-spouse stops paying child support, you may not deny visitation. If your spouse has custody of the child and does not permit you to have your normal visits, you may not reduce child support payments. The answer in these situations is to try to resolve the child support problem through mediation, or through enforcing your agreement in court.

If there has been a history of child abuse or, if because of changes in your ex-spouse’s circumstances, a potential for physical harm exists, talk to your spouse about visitation at a safe location, such as in a relative’s home or, if necessary, in the relative’s presence. If your former spouse refuses, by all means seek court protection for your children. Refusing to allow your children visitation without seeking court intervention is not advisable because the court may find you in contempt, and you may be severely penalized.

If you believe your former spouse’s way of living has become harmful to your children, you could come to mediation with your ex-spouse and negotiate a temporary change in the visitationarrangement until the harmful situation can be eliminated. The only alternative is to go to court to try to modify the visitation arrangement, but you will have to convince a judge of the danger to your children.

In some states, going to jail for a significant period of time (years rather than months) is one of the fault grounds for divorce. Depending on the offense, however, the fact that you have spent time in jail does not by itself affect your right to spend time with your children.

If you were in jail for a nonviolent crime, unrelated to personal or family matters, and unrelated to children, there is no reason because of this alone that your negotiated agreement concerning custody or visitation would be affected. However, there may be other factors that, in combination with the fact that you have served time in jail, could cause concern and might lead to some modifications when the agreement is reviewed by a judge.

If you have been convicted of a violent offense or an offense of a sexual nature, even if it was not violent, your spouse may fear that you might harm the children. If these types of offenses are at issue, you could negotiate in mediation to develop a plan that would allow you to see your children, perhaps with supervision.

For example, another adult whom both of you designate could join you on the visits with the children, and the visits could be very specific regarding time and place. Your visits could be limited and/or supervised for a specific period of time, at which point the visitation plan could be reevaluated. Based on everyone’s feelings, the plan might be modified and then reevaluated again periodically.