By Gary Direnfeld, MSW, RSW
Separated parents need to sort out a plan for the ongoing care of the children.
Most parents know this as determining custody and access. However, these are
now outdated terms, used mostly when settling disputes in higher conflict situations.
Children develop best when parental conflict is kept to a minimum and the children
are able to experience loving and meaningful relationships with both parents.
For parents who cannot determine a parenting plan on their own, there are four
Counselling works well for parents whose conflict is minimal. The issues are
more educational and service is directed at problem solving thus enabling the
parents to reach their own conclusions. In this regard, parents can learn about
and discuss various options for co-parenting and then determine between themselves
what is best for them and the children.
Mediation is recommended for parents who are in conflict, each taking a position
with regard to the parenting plan. They are unable to negotiate between themselves
without the discussion deteriorating and hostility rising. They need a “go-between”,
to keep them on track and the discussion appropriate. Mediation can be helpful
with low to moderate degrees of conflict. Depending on the skills of the mediator
and resolve of the parents, mediation can also work in high conflict situations.
Depending on the issues at hand, a mediator with training and knowledge of child
development and family issues may offer input or direction to guide the process
of negotiation. In the end, parents remain in control of the outcome.
With Collaborative Law, both parents have their own lawyer and all negotiations
take place in four-way meetings – meetings where both lawyers and both
parents are present. Parents and lawyers enter into an agreement to settle matters
without the threat of court. All agree that the lawyers used in the Collaborative
Law process cannot represent the parents at court. Collaborative Law is currently
practiced in two formats. One includes a multi-disciplinary team with members
from mental health and financial planning and the other form opts to deploy
those professionals on an ad-hoc basis. Collaborative Law is a newer approach
to resolving separation disputes so there is no research on how well the approach
works or for whom it is best suited. Drawing upon parallels to mediation, it
is likely that Collaborative Law is suited to persons who need to know their
respective rights are protected by someone fully representing them and where
the conflict between the parents is likely moderate to high.
Litigation involves each parent represented by a lawyer, settling their dispute
with the threat of or actual intervention of the Court – a trial, where
the outcome is determined by a judge requiring mandatory compliance by the parents
whether they like it or not. Litigation is generally observed in the highest
of conflict situations. In these disputes, the parents often have mutually exclusive
positions. They are unable to find common ground to satisfy both positions.
Conflict and hostility are highest in groups of persons using litigation to
resolve a parenting plan. Parenting plans are more often resolved by assigning
one parent control of all decisions and the other parent, visitation rights.
This is where the terms custody and access come into play and where there is
the greatest threat to the well-being of the children owing to the conflict
between the parents.
The above approaches can be seen as a continuum of services available to help
parents resolve matters. As conflict rises, more intrusive forms of support
or intervention are required. Costs rise as conflict rises and more intrusive
services are required.
When parents remain civil and the situation is not inflamed unnecessarily,
conflict can be minimized and disputes may be resolved with the least disruption
to the children and at lower cost to the parents.