Posts Tagged ‘Collaboration’

Best Interests of the Child

July 20, 2009

What if parents cannot agree on who has physical custody of the children? The standard the court uses to analyze this difficult question is known as the “best interest of the child”. This is an area that the court would prefer the parents to work out, among themselves a reasonable custody plan. However if the must get involved there are five (5) Relevant Factors, including:

1. the wishes of the child’s parents as to custody

2. the wishes of the child

3. the interaction and relationship of child with parents, siblings or other significant people

4. child’s adjustment to school, home and community

5. mental and physical health of all individuals.

Certainly, an older child’s wishes will be given more weight than a younger child. What is the nature of the relationship with the child and the custodial parent? The noncustodial parent?  The court will also look at the present home environment and whether the child is prospering within that environment.

Is the child adjusting well in school, getting along with other children, keeping his/her grades up?

Are there any significant issues with respect to the ability of a parent to care for the child? Is there evidence, for example, of drugs/alcohol that could impede the child’s growth?

The court does not take any of these issues lightly. Indeed the decision to either remove a child from one parent or to award custody to the other is, arguably, one of the most important, most difficult, and most emotionally charged decisions that a court can make.

This is another reason why, if the parties would agree to it, mediation is a preferable approach to the challenges of divorce and custody. Mediation is a key tool that will allow the parties to look past their own self-interests, past their emotions, past their anger for the other parent and, instead, focus on the best interests of the child.

If however, the parties cannot agree to mediate the matter, each parent would be well advised to find an attorney who has the ability to work well with the other parents attorney to resolve the matter in the best interest of all the parties.

What do you think? Leave a comment. Let’s discuss!


What Is No Fault Divorce?

July 8, 2009

An uncontested no fault divorce in Massachusetts is governed by Massachusetts General Laws Chapter 208 Section 1A. The term that the statute uses is “irretrievable breakdown”. The first issue that is addressed in a §1A divorce is whether the marriage has in fact broken down with no chance of reconciliation. In this action all that is required to make this showing is an affidavit, jointly or separately executed, stating the marriage is over.

Well, that’s often the easy part. Now what?

There are still a couple of thorny issues that must be addressed: Child custody/support, division of marital property, and, if appropriate, alimony.

The Commonwealth has clearly defined child support guidelines. The amount of support is based on the income of the party’s and the number of children. Generally, this amount is not open to discussion as you simply “fill in the blanks” to determine how much is owed. The non-custodial parent is responsible for paying child support.

Developing a parenting plan is an important element of any divorce agreement. This is an area where mediation can be helpful. Because this subject is fraught with emotion, the mediator, a neutral third party, can be very helpful in assisting the parents to clarify the issues and their mutual interest in meeting the needs of the children.

What happens if the parents cannot agree on who has custody of the children? The court uses a “best interest of the child” standard. In the next post I will discuss what that standard refers to.

I welcome your questions and comments. What’s on your mind? What would you like to discuss? Leave a comment.

Are You My Attorney?

June 29, 2009

When two parties agree to Mediation to dissolve their marriage there is only one attorney hired to begin the process. This attorney will meet with both party’s jointly and, as appropriate, individually.

While there is no hard and fast rule as to how long this process takes, typically it will progress more rapidly than if the couple engaged in an adversarial approach.

So, if there is only one attorney, whose attorney is he? The simple answer is this: The attorney is a Neutral. That is, he doesn’t advocate for either party. The Attorney/Mediator/Neutral is there to guide the parties to a resolution that is acceptable to both. The attorney will not advocate for a particular person or position. It is critically important that both party’s recognize that the attorney is a neutral party. If that neutrality is lost, the mediation will not be able to continue.

Part of the training that a mediator goes through is to develop the ability to be neutral in any and all situations. In fact, the Massachusetts rules of ethics for lawyers states that one lawyer cannot represent two people with different interests. Good mediation, and good lawyering, demands neutrality in mediation.

Have a comment about this post? Ask a question…lets discuss!

How Does the Divorce Mediation Process Work?

June 11, 2009

As a Third-Party/Mediator I do not take sides. My goal is that of a facilitator to help the couple achieve common goals. I know what the court is looking for in a separation/divorce agreement; I know what is possible; I know how to bring people together.

In mediation, the party’s begin to look at the distinction between “positions” and “interests”. When people have positions they dig in their heels and essentially say, “This is the line…don’t cross it!”.

When interests are defined, the party’s are able to ask the question, for example, “What is best for the children?” The process to answer this question, while not devoid of emotion, is, nevertheless, an easier and more clearly defined question. Now, the party’s can move away from “what I need” to “what the children need”.

The role of the mediator, is to assist in that evolving process that is often one of discovery. While the couple can no longer agree on much, with the assistance of the mediator – a neutral third party – they may be able to agree on the best interests of the children.

What Is Family Law Mediation…and Why Bother?

June 10, 2009

My practice of family law includes the traditional approach – adversarial – and the non-traditional collaborative approach. What’s the difference?

If there are children involved the difference can be significant. When two parties seek to end a marriage there is heightened pain and anger. The one thing that often gets lost in the process of dissolving the marriage is the most important thing the once loving couple have in common: sharing and caring for their children.

The process of marital dissolution is one characterized by high emotion — sometimes that emotion is not entirely rationale. In this case the children can often become mere pawns for one party to “get” the other. Often this is something that the parties may not even be aware of.

It is in this situation that divorce mediation is an excellent tool. Instead of focusing on what “I can get NOW” the focus shifts to “How will our lives look going forward and how will we care for our children.” The process of mediation cools the emotions and introduces reason into the process. If the parties can no longer agree on anything…they can agree on this: “We need to be responsible to, and care for our children”.

Divorce mediation can effectively facilitate this process. Mediation can lead to a lasting and enduring success.

I welcome your comments.