20 Jan

Mediation to resolve parenting disputes

Original article by Gary Direnfeld (Canadian social worker) – October 4, 2014

People attend mediation to resolve conflict and this article is specifically aimed at mediation to resolve parenting disputes related to the care of children between separated/divorced parents.

When considering mediation to resolve parenting disputes, one should always consider what issues are involved and what outcomes are desired, in order to find neutral ground.

On the matter of issues, it may be difficult to remain neutral and may not be appropriate to remain neutral. Domestic violence, conflict, drug/alcohol abuse are known to be harmful and often put one person at risk of harm over the other and at times, even at the hand of the other. Neutrality in the face of these and other issues may equal complicity or tacit acceptance. This really isn’t neutral or safe.

Parents should be aware of the natural contribution to distress which these issues impose, when trying to promote wellness (social, emotional, physical and even spiritual) and they should offer guidance to address those issues that otherwise drive conflict. In consideration of “doing no harm”, the mediator must address these issues as mentioned above, for to not address them is tantamount to complicity and/or tacit acceptance, resulting people being at risk of harm. This is far from neutral, as it inadvertently reinforces dysfunctional/unlawful/dangerous behaviour.

It is best to respect self-determination and remain neutral with regard to the outcome. People can still decide for themselves – good or bad. In the end, it is their life – assuming the behaviour in question is not a required reportable offence.

Mediation is more than compromise and Direnfeld sees it as having loftier general goals.

He says that intermediaries aim at getting the parties subject to mediation to learn to resolve disputes respectfully, as well as address those conditions within themselves that may contribute to ongoing harm and/or conflict. This creates more durable, lasting agreements. This means that parents themselves are part of the solution.

However, in the area of family mediation where children’s lives hang in the balance, remaining neutral with regard to outcome can be a daunting task. As family mediators, the well-being of children is top-of-mind, particularly when conflict can fog the parental view of children’s needs. Outcome though, still remains a parental prerogative.

20 Jan

Separated parents and children’s birthdays

Original article by Gary Direnfeld (Canadian social worker) November 24, 2014

In the world of divorced/separated parents, attending and organising get-togethers for children’s birthdays and  can be a struggle.

Who doesn’t want to celebrate their child’s birthday on their actual birthday and what parent wouldn’t want their child to be with him/her on their birthday too? Here is some advice separated parents can take regarding children’s birthdays.

If the parents get along and can easily tolerate each other’s company then it may be simple and easy for both parents to manage their separation and children’s birthdays by attending the scheduled party which younger children would have with their friends.

As for time with your child on their actual birthday (child or parent) when the residential schedule doesn’t permit, this can be trickier.

To find time mid-week to have a few minutes or hours with your child may prove burdensome depending on the age of the child and any extra-curricular activities or homework. If one parent takes or misses an opportunity for time with the child apart from what is scheduled, then many separated parents get befuddled trying to sort out “make-up” time. Accommodating children’s birthdays mid-week can create quite a dilemma.

Remembering that the best predictor for the developmental outcome of children of separated parents has little to do with attending children’s birthdays on the actual birthday or the residential schedule or choice of school, but more to do with parental conflict (see also article on Separated Parents and the Continuum of Conflict), then those choices for celebrating your children’s birthday, or your birthday with your child, that lessen conflict are typically best.

Given the ongoing goal of alleviating parental conflict and with a mind to ease of schedules and the natural demands of life mid-week, most parents opt to celebrate children’s birthdays when with their child in accordance with the regular residential schedule. This is the approach most parents choose.

Again, depending on the parents’ ability to get along, both may attend child birthday parties or alternately one parent may be responsible for planning that party separate from the other parent and on an alternate year basis – with the parents taking turns planning.

Here’s the bottom line – stay away from the issues that create conflict. Separated parents and children’s birthdays may be the start to finding solutions that facilitate peace.

Not together on the actual birthday? A brief phone call can suffice until you can be together in person. Yours and your children’s birthdays should remain celebratory and not be the fodder for bad memories.

20 Jan

Separated Parents and the Continuum of Conflict

Orignal article by By Gary Direnfeld (Canadian social worker) – 4 November 2014

Not all parental separations are alike and not all parental separations spell disaster for their children.

The social science research advises that the most salient factor in determining risk for poor developmental outcomes for children subject to parental divorce is the level of conflict between parents.

Degree of parental conflict can be thought of as a continuum (anything that goes through a gradual transition from one condition, to a different condition, without any abrupt changes – Wikipedia):

Although estimates vary somewhat, in general terms, most separating parents (80%) fall somewhere between the low to moderate degree of conflict on this continuum.

Low conflict separated parents typically hold little to no animosity towards each other, can resolve their differences amicably and support each other with regard to parenting decisions. These parents require little in terms of third party help. In the day-care or school setting, care providers and teachers likely wouldn’t even be aware the child’s parents had separated.

Moderately conflicted parents typically do hold a modicum of anger or animosity towards each other. The parents can be at different stages of their emotional adjustment. Differences can escalate to conflict which at times can require the help of third parties to resolve. Those third parties can include lawyers, mediators and counsellors. Most often, with the help of a third party, parental differences do get resolved and the parents honour their parenting arrangements. In the day-care or school setting, children of moderately conflicted parents may at times appear sullen or withdrawn or angry or distracted. On the basis of behaviour associated with those emotions, a child may come to the attention of the care provider or teacher.

With regard to high conflict separated parents, at least one parent, if not both, holds a great deal of animosity. One or both parents will vilify the other. One or both will present themselves as the victim of the other. One or both will also present themselves as holding the best interests of the child on a greater basis than the other. Conflict tends to be unremitting and as soon as one issue is resolved, several others may surface. There may or may not be a realistic basis to some or all the complaints one parent has of the other. Children in these situations tend to be caught in the middle. They are often used as go-betweens and they are often exposed to the parental animosity. These children are at risk of surfacing with behavioural, emotional and psychological issues that interfere with daily functioning.

Initiatives aimed at supporting separated parents through their transition from living together in one home to living apart with the children transferring between them will differ depending on the level of conflict between them. Furthermore, the degree to which parental collaboration should be encouraged will also differ depending on their level of conflict.

Common thinking suggests that all parents should get along and discuss any and all matters concerning the children. In a perfect world, that would benefit the kids. However, understanding that conflict itself is poison to a child’s development and some parents remain high conflict, intervention is not always aimed at facilitating communication and co-operation.

The greater the parental conflict the more likely that an increase of communication and expected co-operation will only intensify the conflict. As such, while interventions for the low to moderate conflicted separated parents can and should be aimed at facilitating communication and co-operation, with the high conflict separated parents interventions are best aimed at facilitating their disengagement. For the high conflict separated parents, the saying, “tall fences make good neighbours” should guide intervention.

The goal with high conflict separated parents is to structure a parenting plan that reduces the necessity for parental communication, contact and problem-solving. To affect this, the parenting plan tends to be highly structured and somewhat rigid. Parents are not to rely upon each other. Each will have their own supports available to minimize either having to depend on the other understanding that all points of contact provide risk for re-engagement in conflict – poison to the children. (See also article on Right of First Refusal.)

Working with separated parents, social workers or other intermediaries have to distinguish between the “is and the ought”. While separated parents ought to get along, that isn’t always what is. We work with what is, first and foremost. If the parents present in such a manner to suggest they can learn and change behaviour to reduce their level of conflict, then over time, their parenting plan can allow for more flexibility.

Parental peace, reducing conflict, that is the goal and most predictive of children’s well-being, both in childhood and their adult life.

A special note to separated parents: Please play nicely and if you can’t, then leave each other alone and work through your intermediaries!

19 Jan

Resolving Child Custody And Access Disputes – What You Need To Know

Think twice about Court-involved strategies to resolve child custody and access disputes.

Original article by Gary Direnfeld (Canadian social worker)

If you can’t settle your parenting plan and turn to an assessment to inform the Court as to the best interest of your children and related child custody issues, consider the following:

  1. Typically more than 95% of contested child custody and access disputes are settled prior to a Judge making a final order.

If, however, an assessment is entered into at court, the Judge will make an order consistent with the assessor’s recommendations some 80% of the time. The remaining 20% is not that the Judge differs from the assessor and comes in with something quite different. That is actually a rare event. In the remaining 20% of the time, the Judge may modify the assessor’s recommendations. For instance, instead of seeing one’s children Tuesday, maybe the Judge will say Wednesday. Instead of a return time of 7:00 pm, maybe the Judge will say 7:30 pm.

  1. In addition, those outcomes which are imposed by the Judge are less likely to be followed than those outcomes that are reached by mutual agreement, even if both parties aren’t satisfied with the mutual agreement. Here’s why:

If one parent considers him or herself to have won, that parent goes “ya-hoo”, whereas the parent considered losing, goes “boo-hoo”. The loser will next be looking to “revenge” their perceived wrong. This can be achieved by passive aggressive behaviour, being late, not following Orders to the letter, etc., or by stock-piling issues with the “winning” parent to return matters to Court at a later date. However, when parents agree to the outcome, even if both are not 100% happy, then they “own” the agreement and hence are more prone to abide by it.

Mr Direnfeld goes on to say that in Ontario (typical of many jurisdictions), the Court process tries to encourage parents to reach an agreement between them. That is why there are a number of conferences (meetings) in advance of a trial and why at those conferences, a Judge will advise on likely outcomes and ask parents to try to resolve things either with the help of their lawyers or through mediation.

So, while a Court action may have been started, you still have options – it doesn’t mean you are stuck with it; it also doesn’t mean that it is a good option for resolving your child custody dispute and finally, it doesn’t mean that your dispute won’t be resolved anyway prior to a trial or conclusion of a trial.

Parents – please work hard to resolve things between yourselves. If you have had an assessment, know that it is likely to be very influential over the final outcome, even if you think you know more than the assessor, or if you think you have a tough lawyer. Giving the assessor a rough ride on the witness stand still won’t mean, from a statistical perspective, that the Judge will make an Order very different from what has been recommended. Furthermore, even if the Judge does make an Order in favour of your position, don’t think that will be the end of your conflict. In many cases it is only the propellant to fuel more conflict.

If you want an agreement more likely to last and where you have some say or control in terms of the outcome, find a way to settle outside of Court.

Those strategies include:

  • Mediation
  • Collaboration
  • Lawyer-assisted negotiation (assuming you have lawyers who are genuinely settlement-focused).

In the end, there may be no such thing as a perfect settlement. However, if you reach an agreement that brings some semblance of peace that you both can live with, then your children are better off and you all can get on with life. Indeed, that just may be what a good settlement is all about.

19 Jan

Right of First Refusal Agreement between separated parents

Right of First Refusal (ROFR) refers to an agreement between separated parents such that they will first go to each other if in need of a care provider for the child (babysitter).

Article by Gary Direnfeld (Canadian Social Worker), November 23, 2014.

Right of First Refusal (ROFR) refers to an agreement between separated parents such that they will first go to each other if in need of a care provider for the child (babysitter).

ROFR is a Pandora’s box (a process that generates many complicated problems as the result of unwise interference in something)!

Parents who otherwise get along well and respect each other’s role in the child’s life will typically rely on the other for this requirement. However, parents who do not get along well and where one may try to limit the other’s time with the children (or mutually fight over parenting time) will squabble about what situation triggers this right – be it one hour’s need for care, overnight need for care or anything between or greater.

Assuming parents agree on what triggers the need for an ROFR provision, then when the need arises, higher conflict parents may then be seen to play games around “was one really away from the kids for the duration required to trigger the provision?”. In other words, parents who do not want to get along and who do not want to provide any additional time with the kids beyond the residential schedule or use the children as pawns in their dispute, will always find ways to manipulate this provision. Because the provision is there and if it is being manipulated, it keeps tensions and conflict between the parents alive to which children are inevitably exposed.

If you are going to have a ROFR provision in your parenting plan, the parents must possess the capacity to honour the agreement. If there is concern they will not do so, then it is best to leave it out. Parents do argue strenuously at times for it to remain in and to have mechanisms for enforcement. Still it will likely be better for the children to leave it out.

When we consider that conflict is the most salient predictor of poor developmental outcomes for children of separated parents, then less contact and more peace is actually better for the child.

The greater the conflict between the parents the more the need for a rigidly structured and easy to implement parenting plan, which keeps the need for parental communication and co-operation to a minimum.

In circumstances of high conflict, parents should use whomever they want to babysit and if they come to use each other, consider it a bonus. However, using or not using each other is a knife that cuts both ways. If one doesn’t rely on the other, both should know what to expect in kind. Entrenching a provision that is likely doomed from the start to create conflict is apt to be worse for the child than the loss of extra time with the other parent. Sad, but true – mitigating conflict is more important.

Don’t go “courting” a Pandora’s box.