Few issues in a dissolution of marriage are more emotionally charged than the issue of the proper placement of children. Parental motivations vary wildly. The court is customarily charged with determining what is in the best interest of the child. In a contest between two parents, the determinative question is usually whether it is in the best interest of the child to be placed primarily with mom, or primarily with dad, and what contact the child should have with the non-Custodyial parent. If the contest is between a non-parent and a parent, the non-parent must first prove that it would be detrimental to the child to be placed with a parent. It is no easy task to present evidence and determine the 'best interest' of a child or children.
Absent substantial information tending to suggest a contrary result, experience dictates that the court will give serious consideration to the status quo, i.e. the present and existing pattern of parenting. For this reason it is important to establish a pattern of parenting and child sharing consistent with that which you have determined, through experience, is in the child's best interest. The court will generally assume that the pattern of conduct and sharing used by the parents prior to the start of the divorce or conflict, is at least a valid starting point. Although the pattern previously established may not be perfect, and may need adjustment, the court may adopt that plan because it is a plan which the parents have tactfully , if not expressively, previous agreed upon. It is only when the parents have extreme conflict and are unable to act consistently in the children's best interest that the court becomes involved.
The status quo is often a persuasive indicator of something which, absent contrary indications, has not harmed the children and, hopefully, has assisted in their development and maturation process.
Minor changes in the sharing plan should be accommodated by parents and harmoniously and expeditiously processed through mediation or court adjudication. Conflict handled at its earliest stage is generally handled with less friction and animosity than allowing issues to become overwhelming and allowing the frustrations of each party to rise due to lack of communication. If future conflict continues to erupt, or if one of the parents decides that they are unwilling to accept the determination made, then psychological evaluations and more in depth study are frequently ordered by the court.
The psychological evaluator may interview each of the parents (and perhaps the children) and conduct a battery of psychological tests and make clinical observations. The determination is made first as to whether either parent suffers from any psychological dysfunction. Essentially, the psychologist is attempting to determine if each parent falls within the range of 'normal' pursuant to his or her barometer. Rarely does a parent fall outside the broad range of normalcy. As such, having found that each parent falls within that broad range of normalcy, although each may be on different ends of the spectrum, the psychologist then must make some sort of recommendation. The psychologist looks into the history of the child's life and the parenting plan, focusing primarily on the most recent or successful parenting plan. The evaluators generally attempt to avoid disruption of the child's life as much as possible. On the other hand, if there truly is good reason and a substantial basis for dramatic change, many psychologists will so recommend.
Absent an agreement as to the recommendations, the parents must rely on the court to determine the appropriate parenting plan.
"This entire process could be avoided if the parties, at an early stage, attempt to reach agreement and, through a joint effort, form a parenting plan."
Only when the parents are able to see a similar vision are they able to set aside their differences and permit the child's best interest to dominate their discussions. Mediation is a forum to assist parents in communicating their own visions. The position of most parents, as it relates to their children, is to obtain that which is best for their child (which frequently satisfies their "best interest"). As a matter of fact, most states generally presumes that an agreement reached between the parents regarding the child sharing arrangement is in the child's best interest. Some states also recognizes that no one knows better what is best for a child than the child's parents. It is only when the parents are unable to agree what is best for the child that court adjudication becomes necessary.
Disputes involving child Custody and child visitation, along with the formal process to resolve the disputes, may lead to substantial litigation. It is hardly conducive to maintaining a polite relationship between the parents for the benefit of the children. Many states statutory scheme requires that parents seek mediation before the court is permitted to make a decision regarding Custody and/or visitation. Absent conclusion through a mediation process or settlement conference, litigation remains the sole state mandated forum for resolution.
Litigation of child Custody and child visitation may be required when one or both of the parents fail to engage in good faith communication focused on the needs of the children, including their health, education, and welfare. Communication is often the key. The problem is that the parents frequently have lost the ability to communicate. This is exemplified by the fact that the marriage may have failed because of the lack of communication between the parents. These same non-communicating parents must quickly learn to communicate regarding the children, or the Custody and visitation questions will be decided for them instead of by them.
The Superior Court for your State may provide mediation services that provide assistance to all parents who have a dispute regarding Custody and visitation. The court resources are limited and the skills of the mediator may be good, but private mediation is available and provides a greater opportunity for the parents to explore issues if more time is necessary due to the emotional context of either or both parents. Attorneys are not allowed to be present during the Custody and visitation mediation when conducted through the Superior Court.