People often think of divorce as the end of a relationship between spouses. In some cases, it may be. But the reality is that where there are minor children from the marriage, a relationship—though changed—endures until the youngest child reaches adulthood. Learning to deal with this new reality is a large part of a successful post-divorce life.

Both California law and children’s well-being make contact and cooperation between parents necessary. California’s public policy encourages both parents to participate in child-rearing after dissolution, and explicitly favors a child’s “frequent and continuing contact” with both.1 In determining custody, courts must consider which parent is most likely to allow the child to see the noncustodial parent often.2

There are strong practical reasons underlying this public policy. Children benefit from time with each parent, and suffer from the lack of such time. Though there is little data on the lack of maternal visitation, what there is suggests that children in such families suffer anxiety, depression, and sadness, and have difficulty forming and maintaining relationships.3 Children whose fathers have infrequent visitation do worse in school, have lower IQs, and exhibit more emotional and behavioral problems.4 So while dealing with your ex-spouse may cause anger, sadness, frustration, or guilt, learning to co-parent is critically important. Using a family mediator can help to establish effective co-parenting procedures and reduce stress.

Changing the relationship
While a relationship will continue, it is important to remember that roles will change. During the period of the marriage, there is generally one cooperative family unit with defined roles. The dissolution of the marriage necessarily creates two independent units, and changes the nature of the relationship. Neither parent will be able to count on the other to assume sole responsibility for any area – “Bob always handled discipline,” or “Sue always dealt with school issues” won’t apply if Bob and Sue divorce. Each will have to learn to cope with the whole scope of parenting.

And since both parties will now have their own tasks and responsibilities, co-parenting must become a respectful negotiation between joint-venturers with their own interests and needs.5 Two households mean two ways of doing things, two sets of “house rules.”6 While this may cause some disruption, the fact of the matter is that unless a house rule is harmful to the minors involved, the court is unlikely to intervene. If one party asks the court to take a hand, by definition, the process will be time-consuming, expensive, and stressful.

Communicating properly is the key
The divorce process can be full of conflict. Blame, anger, jealousy, fear, long-running arguments – all of these are frequently present in the dissolution process. They can make it difficult to communicate well about even the most basic parenting issues. In order to move forward, parents must acknowledge that parenting well is the highest priority, and set a business-like tone.

It’s important to do the following: Approach the relationship with your ex-spouse as a partnership, where your goal is ensuring that your child thrives. Commit to communicating whenever necessary about important child-rearing topics like health or education, even where the conversations are uncomfortable for you.7 Disengage somewhat from how the other party chooses to do things. Remember that your ex-spouse is now entitled to parent in his or her own way. Although you may disagree on the details, you should accept that you can’t control everything in a household that isn’t yours. If you can’t agree, pick your battles. Let the small differences go and focus on what matters to the health, safety, and welfare of your children.8 Remember that you and the other parent may be working together for years. There may come a time when you need a favor from your ex-spouse, or really want to resolve a disputed issue in your favor. Be flexible and restrained now or you’ll surely be in trouble then.9

Parents shouldn’t vent their anger or criticisms about the divorce process or about their ex-spouse in front the children. It’s harmful to the kids.10 In a business situation, the parties would refrain from such venting. More importantly, acting that way is a sure way to alienate the co-parenting “partner.”

How a mediator can help in the co-parenting process
Ideally, mature adults committed to the co-parenting process will be able to cooperatively work through their disagreements toward the common goal of happy, well-adjusted children. But no one is perfect, and everyone needs help working through problems from time to time. In contrast to individual negotiations or a judicial decision, family mediator can be an excellent way to resolve disagreements and has various advantages.

1. The parties maintain control of the process. Raising children is one of the most intensely individualized things a person can do. There’s no fool-proof method for raising children, but parents naturally have their own ideas and preferences. Once a court becomes involved, the judge will make a decision, and may run on tight deadlines. A “standard” way of doing things is likely to be applied. In a mediation, the parties have the freedom to do what they want on their own schedule, if they can agree.

2. The focus is on meeting needs. Courts base their decision-making on rights and precedent, not on goals and needs. There is usually a winner and a loser, and if a party needs something from the process that hasn’t been done before or to which he has no right, he probably won’t get it. In contrast, most mediators focus on the parties’ needs and goals. And because a successful mediation requires an agreement, each party generally gets something it needs. There’s rarely a complete “loser.” Further, the parties can agree to things the court might not order, like grandparent or third-party visitation.11

3. Emotions are not irrelevant. As noted, the dissolution process can be a very emotional and stressful one.12 In general, the courts’ focus on rights and precedent means that the parties’ emotions are simply ignored, even where they are the only thing preventing resolution.13 . In a mediation, by contrast, emotions are often a recognized barrier to resolution, and become central to the process. Additionally, the experienced mediator deals daily with strong emotion, and is familiar with techniques used to confront it, diffuse it, and refocus all involved on the central issues – here, the health and happiness of the parties’ children.

4. The mediator may serve as a resource to all. Of course, a bench officer may not pre-judge a case or speak about it to less than all parties (except as permitted during settlement efforts).14 A mediator, by contrast, can be a sounding board for all concerned, can give educated opinions about what the court is likely to do, can realistically evaluate and discuss the parties’ alternatives to settlement, and can suggest solutions the parties did not think of, precisely because of his or her neutrality, experience in the system, and exposure to other alternatives.

5. Mediation is substantially less expensive than litigation. A 2011 estimate of divorce costs set them between $53,000 and $188,000.15 Mediation, in contrast, could cost as little as $5,000 to $7,000. The drastic difference in cost leaves resources free – resources that might be used to deal with unresolved economic issues, or meet the needs of a child of the marriage, thereby shortening the process and decreasing stress.

Using a focused co-parenting approach will likely reduce conflict because both parties are expressly working toward the same goal. When conflicts do arise, mediation offers substantial advantages to mediation, and should be used whenever possible.

by Scott C. Van Soye
1 California Family Code § 3020 (b).
2 Cal. Fam. Code § 3040 (a)(1).
3 Chambers, D.L., Rethinking the Substantive Rules for Custody Disputes in Divorce, 87 MICHIGAN L. REV. 477 (1984).
4 Maldonado, S., Beyond Economic Fatherhood: Encouraging Divorced Fathers to Parent, 153 U PA. L. REV 921, 950-951 (2005).
5 Nelson, L. I., and Blanco, P., 10 Commandments of Co-Parenting, MINNESOTA PARENT (1995).
6 Id.
7 Block, J .and Smith, M., Tips for Divorced Parents: Co-parenting with Your Ex and Making Joint Custody Work.
8 Stahl, Phillip M., Parallel Parenting IN PARENTING AFTER DIVORCE.
9 See Block, supra, note 7.
10 Trustees of North Dakota State, Co-Parenting through Separation and Divorce: Children First (1996).
11 A caveat here is that the standard for custody and visitation is the “best interest of the child,” See CA Fam. Code §§ 3011, 3020, 3040. If the court were to determine that a mediated agreement, did not meet that test, the agreement would not be enforced. However, as discussed above, an experienced mediator would likely alert the parties to this issue before the close of mediation.
12 Divorce ranks second only to the death of a spouse as a stress-producing event. See Holmes & Rahe, The Social Readjustment Rating Scale, J. PSYCHOSOM. RES. 11, 213–8 (1967).
13 It is true that emotional and psychological health is relevant to the best interest of the child: Advocating for Comprehensive Assessments in Domestic Violence Cases, 46 FAM. CT. REV. 654 (2008). The point here, though, is that the psychological health of th parents was irrelevant except as it impacted the child.
14 California Canon of Judicial Ethics 3B(7).
15 Chiamp, C., The War of the Roses is So Yesterday.

Scott Van Soye is the managing editor of ADR Times. He is also a full-time mediator and arbitrator working with the Agency for Dispute Resolution with offices in Irvine, Beverly Hills and nationwide. He is a member of the California Bar, and practiced real estate, civil rights, and employment law for over twenty years. He holds an LL.M. in Dispute Resolution from Pepperdine University, where he is an adjunct professor of law. He welcomes your inquiries, and can be reached at scott.vansoye@agencydr.com or (800) 616-1202, Ext. 721. www.scottvansoye.agencydr.com