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Effective Ways To Resolve Disputes Over Children In Divorce

Disputes over children are probably the most difficult and stressful matters that face a parent or child going through the divorce process. They are also the most important. This article will discuss how those decisions can be made, what the process is for resolving disputes and how judges make those decisions when parents cannot agree.

First, here are some very important things to keep in mind.

• Parent conflict is probably the greatest threat there is to the well-being of a child short of physical abuse or neglect. Long term studies show that children who grow up being exposed to serious parent conflict encounter depression, have difficulty in school, make poor choices in their own lives and have difficulty establishing positive relationships later in life. The same studies show that children in high conflict custody cases are generally less happy and well-adjusted than children whose parents are not in high conflict. For most children, adjusting to a new family structure, new home, going back and forth between homes and simply living as a child of divorce are hard enough. Burdening a child with the ongoing conflict of their parents and placing the child in the middle of that conflict is often overwhelming.

• Even very young children pick up on parent conflict.

• The law is very clear that a child is entitled to a positive and close relationship with both parents absent serious mental health problems are serious abuse or neglect. It is the child who has the right to parenting time and to a healthy relationship with each parent. It is important to separate your child’s needs for a parent from your own adult issues with each other.

• The law is also clear that each parent has the responsibility to encourage the love, affection and contact between the child and the other parent. It is usually quite harmful for a parent to openly criticize the other parent to a child or to undermine the child’s relationship with the other parent.

• Courtrooms are lousy places to raise children and resolve parental conflict. Judges do not have magic powers to make parents behave or become perfect parents. Judges rarely can fashion an order that takes into account the day to day decisions and needs of a family. Judges encourage parents to work together to resolve their disagreements for the sake of the child and to “love your kids more than you dislike the other parent”. No judge can ever know as much about a parent or about a child as he or she would like in order to make a perfect decision. Parents are in a far better position to make decisions about the child’s education, health care, activities and parenting time than a judge.

• In Colorado we do not use the words “custody” or “visitation” anymore. The law addresses “parental rights and responsibilities”, which include “decision making” and “parenting time.”

• “Decision making” applies to the decisions about the child’s education, medical and dental care, emotional health, physical and emotional development, and activities. “Parenting time” means the time the child spends with each parent and usually involves a schedule for when the child is with each parent. The schedule can include a daily schedule as well as one for holidays and the summer break from school.

How Decisions are Made about the Children

The law in Colorado is clear. The primary goal of any decision about a child in a divorce or parental responsibilities case is that the decision will serve “the best interests of the child”. The only thing that really matters is doing what is in the best interests of the child. The goals and desires of the adults, while important, are secondary.

The law overwhelmingly favors decisions that are made jointly by the parents. If both parents agree on how decisions will be made and what the parenting time will be the law mandates that the Court approve those decisions unless it is clear that the decision is not in the child’s best interests. Therefore, the law encourages parents to work with each other to develop a plan for making decisions and for parenting time that serves the best interests of their child. Fortunately, in the vast majority of cases the parents are able to do this and agree on a parenting plan without the need for any court involvement.

Some tools and resources that are available to parents to help them develop a good parenting plan include the Children and Families in Transition classes that are sponsored by the 4^th Judicial District and CASA of the Pikes Peak Region. These classes occur at the Court house several times each month and the class is also available online. Other resources parents may wish to consider are:

• Consult with an experienced child therapist who is familiar with the dynamics of divorce about a parenting plan that will best suit the needs of their child.
• An experienced family law attorney can give advice on how to develop a parenting plan or make a referral to a child therapist.
• Forms for a parenting plan that can be used to develop a parenting plan are available on line at the Colorado Courts Self Help Center. https://www.courts.state.co.us/Forms/PDF/JDF%201113%20Parenting%20Plan.pdf
• Finally, there are a number of good books that outline what to consider for a parenting plan and these include some suggestions for a parenting plan. These include: Parenting Plans for Families After Divorce, by Joan McWilliams; and Mom’s House, Dad’s House, by Isolina Ricci.

When parents are not able to agree on parenting issues then they are inviting the Court to intervene—some might say intrude—in their lives and the lives of their children. Judges devote a great deal of time and effort to cases involving disputes over children but universally will tell parents that their conflict is harming their children. Judges constantly encourage parents to find a way to cooperate and compromise on issues involving their kids.

If the parents cannot agree the Court can be asked to appoint a professional to act in the role of a Parental Responsibilities Evaluator (PRE) or as a Child and Family Investigator (CFI). A PRE is a qualified and licensed mental health professional. A CFI may be a mental health professional, a lawyer, or an individual who has completed the state mandated training for a CFI. Most CFIs are mental health professionals. Another person who may be appointed by the Court in a high conflict case is a Child Legal Representative (CLR). A CLR is an attorney who represents the best interests of a child in a high conflict dispute over a child.

A PRE and a CFI will conduct an investigation and file a report and recommendations with the Court concerning what that PRE or CFI believes to be in the best interest of the child. They will typically meet and interview each parent, meet and interview the child(ren), and in some cases contact and interview collateral witnesses such as a teacher, daycare provider, healthcare provider, therapist or close relatives. The report will summarize the investigation and findings of the PRE or CFI and make recommendations to the Court about decision making, parenting time and any other significant issues in the case, i.e., special needs of the child, domestic violence, untreated mental health issues, allegations of abuse or neglect, etc. The cost of a PRE varies but it can be thousands to tens of thousands of dollars depending on the facts of the case. The cost of a CFI is usually less expensive but can still be thousands of dollars. The report and recommendations of this neutral professional usually carries a great deal of weight with the judge.

A CLR may conduct a limited investigation and will meet with the child if the child is old enough to understand what is happening and to communicate. The CLR can make recommendations to the Court as well. As a lawyer the CLR will advocate for what the CLR thinks are the best interests of the child in Court. The CLR is not necessarily required to make recommendations consistent with the child wishes but will inform the Court of what the child’s wishes may be.

At a final orders hearing the judge will hear the evidence from both sides, consider any reports from a PRE, CFI or CLR and then determine what the decision making, parenting time and support will be. If there is no PRE, CFI or CLR the evidence is often the testimony of each parent and perhaps some witnesses who know them or the children. The judge determines what facts are persuasive and what facts are not. The judge determines which witnesses are the most credible and believable. The judge then enters an order that outlines his or her findings and enters orders concerning the child related issues. The judge has significant discretion to fashion an order that he or she believes will be in the best interests of the child.

Placing the decision about the future of a child in the hands of a judge also means the parents are delegating this very important decision to a virtual stranger who has very limited knowledge of them and of their child. While judges are extremely conscientious when given this very important task, they do so only because the parents are not able to make those decisions themselves. The outcome may or may not be ideal for the family. Leaving this decision up to a judge is risky because the outcome is always uncertain. This is yet another reason for parents to do everything they can to reach agreements about decision making and parenting time for their child.

Conclusion

Every family court judge will tell you that, absent serious mental health issues, domestic violence or child abuse and neglect, it is usually far better for the parents to make decisions about the future of their children. The vast majority of parents are fit and capable even though they may have different approaches to parenting.

It is almost always better for your child if you and the other parent can come to agreements about decision making and parenting time. Agreements are usually followed more closely than are orders forced on the parties by a judge. Agreements can be flexible and take into account the routine needs of the family as well as accommodate unforeseen events and circumstances. Parents who can work together and problem solve effectively do their children a great service. Parents who place their own needs and their animosity toward each other before the best interests of their child are likely to do great harm. The cost of an ongoing court battle over children can be financially devastating, but the cost to the emotional health of the child can be even more harmful and long lasting.

If you must go to court it is most helpful to the judge if there is an objective report from a neutral professional such as a PRE or CFI or CLR. This additional information gives the judge more reliable evidence than simply hearing the testimony of the battling parents and their witnesses.

No matter what you have to do, remember to always ask yourself: Is what I am doing in the best interests of my child? Am I putting my child’s needs first? Am I supporting my child’s relationship with the other parent?