A few years ago, an article in the New York Times compared how courts treat parental decision-making of married couples versus divorcing or divorced couples. New York courts generally give deference to married parents and don’t get involved in disputes between them over bringing up their children. Obviously, there are exceptions. However, in divorce, judges regularly exercise their power to make decisions about where children will live, how much time they spend with each parent, where they go to school, what medical care they get and so forth. Judges have the ultimate authority to determine what is in the “best interests” of your child, including getting into the minutia of how you raise your children.
The article pointed out that technically a judge can even overrule the divorcing parents’ agreed-upon parenting plan. Yes, that is true if the plan is not in the best interests of the child. However, typically, courts only get involved when parents cannot agree.
Unfortunately, custody and visitation disputes are common in divorce. Some parents choose to litigate over these issues because they are seeking “justice” or “fairness” for themselves and their children. However, what that means is colored by their emotions. Divorce is stressful for every couple, but for parents, there is additional anxiety because they feel they are or may lose control over their children. They often opt to fight over any limits on their rights as parents out of fear. For others, the custody arguments are really about seeking redress for grievances that relate to the marriage not parenting concerns. Whatever the reason for going to court, the result is the same. Parents end up ceding their authority to make decisions over how they want to raise their children to a judge.
It is not easy to get past negative emotions like fear, anxiety, and anger to negotiate with your spouse. If you pursue litigation, it is almost impossible. Litigation is an adversarial process where the parties seek to “win,” not compromise. Instead, parents need to look to an alternative method of dispute resolution (ADR) such as mediation or collaborative divorce. Both methods encourage the parties to find common ground.
The benefits of ADR include saving time and money in resolving a divorce. For parents, it offers additional advantages. New York courts prefer parents come to their own agreement regarding their children. Generally, they will approve parenting plans unless the parties are acting in a way that is not in the best interests of their children. Further, in mediation and collaborative divorce, the parties learn to communicate in a healthy and constructive way. That is important because parenting is not limited to making a one-time set of decisions. The parties must continue to deal with each other. If disagreements occur, they now have a roadmap for how to resolve them without having to go back to a judge. Furthermore, studies show that children benefit when their parents can cooperate and be respectful of each other during and after divorce.
Alternative dispute resolution isn’t right for everyone, but if you don’t want a judge telling you how to raise your children, you should discuss your options with an attorney.
As The Divorce Sherpa, I try to assist couples in taking the right path that gives them a positive divorce experience. Ultimately, I hope to make it easier for them and their children to heal and feel more confident in taking the next step in their lives.
If you are interested in learning more, contact me for a consultation today.