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Post-Divorce Parenting 


Chapter 4

Parenting Disputes in Divorce:
Facilitating the Development of Parenting Plans Through Parent Education and Therapeutic Family Mediation

Edward Kruk

(Mediation and Conflict Resolution in Social Work and the Human Services, Chicago: Nelson-Hall. Pp. 55-79.)

 

The "parenting plan" approach to child custody determination is a relatively new concept, seen by many as the next step in the evolution of child custody law, providing the operational reality to the conceptual progression from fault-based to no-fault divorce, sole custody to shared parenting, and parental rights to parental responsibilities (Tompkins, 1995). It is the antithesis of the concept of "custody," which is seen to reduce the best interests of the child to the idea of individual parental rights, reflecting the premise that children are "property" to be awarded to the rightful owner. In contrast, parenting plans focus on the best possible postdivorce parenting arrangements that both parents can make for their children (McWhinney, 1995).

A parenting plan is a detailed articulation of postdivorce parenting responsibilities, including specific arrangements regarding time spent by the children in each parent’s household, holiday schedules, how decisions are made, and how costs will be allocated. The parenting plan approach to child custody determination involves the negotiation and allocation of parental responsibilities after divorce either directly by the parents themselves, or with the assistance of third parties such as lawyers or mediators, toward a postdivorce parenting arrangement that primarily reflects children’s needs and interests, emphasizes parental responsibilities to children over parental rights, and leaves neither parent feeling either overburdened or disenfranchised in relation to these responsibilities.

The idea of parenting plans has essentially grown out of attempts to resolve the sole custody/primary caretaker versus joint custody debate. In Washington, Florida and Maine in the U.S., as well as in Australia, the United Kingdom, and some Scandinavian countries, some form of parenting plan legislation has been enacted, and the resolution of this debate has involved the elimination of adversarial and "ownership" language, replaced by new language which emphasizes children’s needs and parental responsibilities.

Tompkins (1995) outlines a number of fundamental assumptions underpinning the parenting plan concept. First, it is assumed that parents need a divorce process that helps them to focus on their children’s needs at a time when their own multiple transitions and losses render them relatively insensitive to these needs. The parenting plan approach focuses primarily on children’s needs, mandating that parents consider the variety of functions that constitute postdivorce parenting and allocate responsibility for these functions. Second, it is assumed that the interests of the majority of children are best served by the substantial and continued participation of both parents in child rearing, within some form of cooperative shared parenting arrangement. To this end, parenting plans avoid use of words such as "custody" and "visitation," which connote images of power, possession, control and ownership, replacing them with the language of "parental responsibility" and "cooperative shared parenting." Finally, it is assumed that most parents enter the divorce process ill-prepared for what lies ahead for them, and need an educational opportunity to obtain the information they lack.

The means by which parenting plans can be formulated include divorce parent education programs and therapeutic family mediation. Courts’ involvement in the divorce process changes dramatically, as they are no longer responsible for the determination of custody, except in certain cases. Rather, when an application for divorce or legal separation is made, the requirement that parents in conflict formulate a parenting plan is established by the court. This is followed by an order that clarifies and supports the negotiated parenting arrangement, in which children’s needs, parental responsibilities and the preservation of existing parent-child relationships are emphasized, as opposed to parental rights and entitlements.

As the means by which parents are assisted to formulate and determine their own postdivorce parenting plans, mediation is not simply a dispute resolution device, and the goal of mediation is not merely the settlement of disputed issues. Mediation should serve to promote a situation where parents have taken on the responsibility for separating their previous marital conflicts from their ongoing parental responsibilities, and are able to develop a parenting plan that is guided primarily by their children’s needs and interests. Mediation aims to restructure parent-child relationships in a manner that meets the children’s and parents’ interests; enhance cooperation between the parents; promote healing by acknowledging deep-seated hurts and helping parents work through emotions associated with the loss of the marital relationship; and transform the parties by empowering them to resolve future disputes via newly-developed communication, negotiation and problem-solving skills, and by allowing them to recognize the core needs of other family members, particularly their children. Mediation thus becomes a therapeutic and educational process that is primarily child-focused. Although mediation is not therapy per se, mediators can helpfully draw on the knowledge and skills of family therapy to the extent that the process may well become a therapeutic experience for the parties (Walker, 1993).

Ideally, postdivorce parenting arrangements should attempt to approximate as closely as possible the parent-child relationships in the original two-parent home. In the majority of instances, this would translate into a parenting plan in which both parents have not only equal rights with respect to their children's welfare and upbringing, but also active responsibilities within the daily routines of their children's care and development, in separate households.1 As the living arrangement most closely resembling the majority of pre-divorce families, and coinciding with emerging models of marriage and parenthood, this type of shared parenting arrangement is regarded by many as the healthiest and most desirable arrangement for the majority of families (Folberg & Graham, 1981; Irving et al, 1995). The two most salient factors associated with positive outcomes of divorce for children and parents are the maintenance of meaningful, active and ongoing relationships between children and both of their parents, and the parents' ability to minimize conflict and cooperate with each other in regard to parenting and decision-making. Cooperative shared parenting may thus be the key to ameliorating the negative impact of divorce on all family members.

Parent education and mediation have considerable (and as yet largely untapped) potential in establishing such cooperative arrangements as the norm, rather than the exception, for divorced families. For the most part, parent educators and mediators have avoided directly promoting and facilitating shared parenting arrangements, for diverse reasons. Indiscriminately recommending shared parenting for those who are extremely poor candidates is highly problematic: there are clear contraindications to shared parenting, including cases of child abuse, neglect, or exploitation, the physical or psychological incapacity of a parent, chronic alcoholism or drug addiction, or a stated disinterest in caring for the children; highly conflicted couples may never be able to exclude their marital conflicts from their ongoing negotiations in regard to parenting; abused spouses may continue fear potential violence within a co-parenting structure. While these point to the need for careful screening of potential candidates, the notion of establishing shared parenting plans as an ideal is based upon the assumption that in the majority of cases, both parents are capable and loving caregivers and have at least the potential to minimize their conflict and cooperate with respect to their parenting responsibilities. Unless there are compelling reasons to the contrary, children’s needs in divorce are assumed to be best met by some form of shared parenting arrangement.

In addition, the promotion of shared parenting in parent education and mediation is antithetical to the neutral stance adopted by many mediators (Roberts, S., 1988; Roberts, M., 1988); such a therapeutic and interventionist approach, it is argued, reduces client self-determination and may result in a lack of commitment to the mediated agreement, and undermines the parties' ability to undertake any necessary renegotiation of parenting arrangements by themselves (Roberts, S., 1988). This chapter will argue that parent education combined with a therapeutic model of family mediation can in fact bolster parents’ ability to negotiate and make informed decisions, enhance their communication and problem-solving skills, and ultimately strengthen the durability of negotiated agreements. In addition, the model offers clients the benefit of interventions designed to enhance their negotiations and construct agreements that promote the principles of shared parental responsibility and authority which are associated with the best interests of children in divorce. Mainstream mediation approaches have been particularly lacking in this regard (Bernard et al, 1984; Saposnek, 1983). It will also be argued that mediators have an implicit ethical responsibility to promote postdivorce parenting arrangements that are in children’s best interests; they should not make decisions for parents, but they are in a unique position to expand the range of options available to them, point out the costs and benefits of each, and help them weigh the consequences of their choices. Research, Debates and Trends

Research

A number of recent North American studies have supported shared parenting plans as a viable and optimal structural arrangement for families after divorce. Ahrons (1981) concluded that shared parenting in fact constitutes a wide variety of parenting arrangements and relationships among families. Leupnitz (1982) interviewed children as well as parents, and compared sole maternal, sole paternal and shared parenting arrangements, concluding that children are more satisfied with shared rather than with sole parenting arrangements. Shiller (1984) found that divorce causes less trauma and dislocation to children whose parents opt for shared parenting and that these children appeared to be more comfortable with the status quo, with a more realistic image of what the future will bring. Wolchik et al (1985) discovered that children in shared parenting homes report a significantly higher number of positive experiences than children in sole parenting arrangements. In Britain, Lund (1987) compared children and parents in "single-parent/father absent" families with those in "conflicted co-parenting" and "harmonious co-parenting" families and, utilising independent teacher ratings in addition to interviews with both parents and their children, concluded that children functioned best in harmonious co-parenting families and least well in single-parent families.

Irving et al's (1984) study of shared parenting utilized a large data base and a longitudinal design. Contrary to expectations, they found that shared parenting is a realistic consideration for all economic groups, an idea that was obscured by the preponderance of middle- and upper-class families in earlier studies. Also, parents with initial doubts and some reluctance about opting for co-parenting were able to negotiate shared parenting plans, and reported positive long-term outcomes. It was not necessary for co-parents to be favorably disposed to each other for the arrangement to work, although most respondents reported a change in their feelings toward their former spouses, typically becoming more positive; nor was it necessary for parents to have had a high level of cooperation in sharing parental responsibilities during the marriage. In almost all cases, the initial consideration of the possibility of a shared parenting relationship was first raised by one of the parents rather than by lawyers, mediators, family therapists, or other professionals. Overall, nearly 90% of co-parents were in favor of the arrangement. The authors concluded that shared parenting is a viable option for a range of divorcing couples, but not for everyone. Good predictors of outcome success included a commitment to parenting, reasonable communication skills, flexibility, the ability to separate previous marital conflicts from matters concerning the children, and good faith with regard to agreements made; conversely, intense and continuing conflict, weak commitment to active parenting, and irrational hope of reconciliation were all predictors of failure.

An important caveat must be made in interpreting the results of studies of shared parenting as most involve parents who have independently chosen to make such arrangements. Brotsky et al (1988), however, reported on a study of a pilot mediation program in California which promoted shared parenting in cases where at least one of the parties was opposed to the arrangement. When educated about children's needs in divorce and informed of the range of parenting options open to them, 80% of participants opted for a shared parenting arrangement. In a one-year follow-up of these mediated arrangements, the authors found that shared parenting provided stability (93%), parental satisfaction (68%), valuing of the other spouse (97%), and comfort for the children in relation to both parents (82%). When compared with those in sole parenting arrangements, children in shared parenting homes, like their parents, were reported to be functioning significantly better in all areas.

Debates

Primary caretaker presumption. While research studies have provided substantial empirical support for shared parenting as a desirable postdivorce option for families, a number of concerns have been expressed among a number of U.S. legal scholars. Fineman (1988) and Polikoff (1982), arguing in favor of a legal "primary caretaker" presumption, question the degree to which shared parenting actually reflects pre-divorce family structures, and caution against an uncritical acceptance of the position that women and men make identical contributions to parenting during marriage.

It may be questioned, however, whether sole parenting after divorce is in fact more reflective of pre-divorce family structures than shared parenting. While mothers generally assume the lion's share of responsibility for child care within two-parent families (although there exists a heterogeneity of parenting roles within families, including greater sharing of care than previously), in the majority of cases both parents form close and salient attachment bonds with their children and remain uniquely influential in their development (Lewis, 1986; Lamb, 1986). This is reflected after divorce, in sole parenting families, in children's pervasive longing for their absent fathers, despite varying amounts of actual parenting involvement by fathers during the marriage (Kruk, 1993a).

Continuing hostility between spouses. Another issue of debate regarding shared parenting concerns the ex-spouses' ability to cooperate. It is argued that shared parenting can be calamitous if parents are unwilling or unable to cooperate and their relationship is characterized by high conflict, which typically attends divorce. As Folberg & Graham (1981) point out, however, it is more likely the adversarial nature of the legal system, when extended to the issue of postdivorce parenting, that polarizes parents and exacerbates hostilities; to the extent that the legal system casts divorcing parents in the role of enemies and expects them to be unable to cooperate, a self-fulfilling prophecy is created; legal processes not only exacerbate parental conflict, they often create an atmosphere of hostility in cases where relatively amicable negotiation may have taken place (Kruk, 1991).

Whether the parents are able to isolate their previous marital conflicts from their continuing roles as parents may be the critical issue in the "parental cooperation" debate. There is evidence that shared parenting provides an incentive for cooperation; what often begins as a "front", an appearance of minimal conflict in the children's presence, becomes in time a "normal" pattern of relating, a self-fulfilling prophecy (Irving et al, 1984). When neither parent feels threatened with the possibility of loss, each is in a healthier position for cooperation (Calvin, 1981). Shared parenting, in providing for a combination of "time off" and enhanced involvement in child-care, helps to overcome the problem of mothers feeling overwhelmed by sole responsibility for children and fathers feeling excluded from their children's lives (Folberg & Graham, 1981).

Lack of continuity in children's routine. Another important concern about shared parenting is that it may be disruptive and confusing for children to have two homes, where they encounter two different lifestyles and value systems; shared parenting, it is suggested, inherently creates an unstable, impermanent condition for children. In rebuttal, it has been shown that children have strong attachment bonds and relationships with both parents, and show remarkable tenacity in continuing these under a variety of conditions (Richards, 1982). Shared parenting exposes children to two lifestyles and two points of view, offering a larger array of positive characteristics to model, and a greater variety of cognitive and social stimulation; while sole parenting can sever a child's ties with an entire set of relatives, shared parenting permits the child's support group to expand (Folberg & Graham, 1981). In providing for active parenting by two nurturing figures, shared parenting may contribute to a breakdown of gender-differentiated character structures in children (Richards, 1982). Thus, while critics of shared parenting point to the child's vulnerability and need for a consistent and predictable world, proponents emphasize the child's resilience and need for emotional support and stimulation from diverse sources.

Proponents of shared parenting plans have stated their "case" from both the perspective of parents and children. It is argued that most sole parenting mothers feel their children largely overburden and imprison them, and mothers become physically and emotionally exhausted, as well as socially isolated (Wallerstein & Kelly, 1980; Sev'er, 1992); it is not surprising, then, that in studies of shared parenting, mothers reported that the greatest advantage of the arrangement is the sharing of care for their children and relief from the sole responsibility of parenting (Nehls & Morgenbesser, 1980). Whereas noncustodial fathers are effectively disqualified as active caretakers of their children (Kruk, 1991), co-parenting fathers report that the greatest advantage of sharing care is the opportunity to maintain an active and meaningful role in their children's lives, in "normal" day-to-day living situations (Greif, 1979). Finally, shared parenting spares children the disruption and feeling of rejection following the departure of one parent; it ensures the preservation of attachment bonds with both parents in a continuous, secure and protected relationship (Folberg & Graham, 1981).

Trends

Parent education as a precursor and adjunct to mediation. It is now generally accepted that it is not divorce per se that results in the difficulties experienced by separated family members; rather, certain critical mediating factors stand between separation and postdivorce outcome for family members (Wallerstein & Kelly, 1980; Hetherington et al, 1978; Hess & Camara, 1979). These include the extent to which both of the parents and their children are able to maintain meaningful relationships, the level to which the parents are able to support each other in their continuing parental roles, and the extent to which informal social networks and formal judicial, educational, and social welfare institutions are supportive in regard to both.

Given the lack of information available to divorcing families about what to do, what to expect, and the services which might be available to them (Walker, 1993), it may be argued that there is an implicit ethical responsibility for mediators to ensure that such information is made available to parents prior to instituting any dispute resolution process via some form of parent education program. Parents who are oriented to the divorce process and the impact of divorce on family members are better prepared for mediation, and better able to keep the needs of their children at the forefront of their negotiations. Divorce education programs also offer a means to expose divorcing popultions to mediation as an alternative mechanism of dispute resolution (Braver et al, 1995).

Further, an educative approach should be an integral part of the mediation process, with a primary focus on children’s needs during and after the divorce process. Family mediators with expertise in the expected effects of divorce on children and parents can be instrumental in helping parents to recognize the potential psychological, social and economic consequences of divorce and, on that foundation, promote arrangements conducive to children maintaining meaningful, positive postdivorce relationships with both parents within a non-conflictual atmosphere.

Mediation and shared parenting plans. One of the most debated issues in the field of family mediation is the extent to which mediators should actively shape the outcome of the agreement: should they assume a neutral or a therapeutic/interventionist role? Neutral mediators seek to avoid influencing the outcome of the negotiations and accept any decision the parents agree on that is not obviously harmful to either. The therapeutic/interventionist mediator, on the other hand, is actively involved in shaping an agreement that includes those factors known to contribute to positive postdivorce outcomes.

The model described in this chapter requires the mediator to assume an affirmative stance in promoting and facilitating the development of cooperative shared parenting plans, where appropriate. It proceeds from the assumption that neutrality in mediation is largely an illusory concept; whether they are made explicit or not, mediators carry with them preconceived notions about what is in the best interests of children and families in divorce, and tailor their interventions accordingly, practicing what Greatbatch & Dingwall (1990) refer to as "selective facilitation" in guiding the mediation process toward arrangements which reflect these notions. It is important for the mediator to declare such biases: that the termination of a marriage necessitates a restructuring of family life that enables children to maintain a meaningful and active relationship with both parents, within as cooperative a coparental relationship as possible. If mediation does not exercise its educative and therapeutic function, stressing the desirability of active parenting by both parents, detailing the range of shared parenting possibilities open to families and, where appropriate, actively facilitating and working through the logistics of a shared parenting arrangement, it fails to live up to its true potential.

Mediators also need to pay greater attention to the durability of parenting agreements, and the need for parents to continue to improve their ability to cooperate and negotiate with each other after divorce. The challenges facing divorced co-parents are numerous; once in place, shared parenting requires an extremely high level of organization, cooperation, and commitment. Mediators can play a key role in helping parents to meet these challenges; to add to its educative and advocacy function, mediation should also include a support and troubleshooting component, a period of follow-up to assist parents not only to share in the parenting of their children, but to do so in a cooperative manner.

Facilitating the Development of Postdivorce Parenting Plans via Parent Education and Therapeutic Family Mediation

Parent education regarding children’s needs and interests during and after the divorce transition, followed by a therapeutic approach to divorce mediation, offers a highly effective and efficient means of facilitating the development of cooperative shared parenting plans. Within such an approach, parent education is used to introduce the option of shared parenting as a viable structural alternative, and reducing parents' anxiety about a living arrangement deviating from traditional custody and access arrangements. Mediation then is used to help parents work through the development of the parenting plan, and implementing the plan in as cooperative a manner as possible. The process consists of four essential elements of the parent education program, and four distinct yet overlapping phases of mediation. Premediation: Parent Education

  1. Orientation to the divorce process and available services: stages of divorce/grieving; alternate dispute resolution processes (including mediation); divorce counseling services and other community resources;
  2. Children's needs and interests in divorce;
  3. Postdivorce parenting alternatives;
  4. Communication, negotiation and problem-solving skills. Therapeutic Family Mediation
  1. Assessment to determine whether the parents are both ready to enter into therapeutic mediation, and whether shared parenting is indicated;
  2. Exploration of shared parenting options and actively promoting a parenting arrangement that meets the children's needs first and the parents' second;
  3. Facilitation of negotiations toward the development of an individualized cooperative shared parenting plan, which outlines specific living arrangements, schedules, roles, and responsibilities;
  4. Continuing support/troubleshooting during the implementation of the shared parenting plan.

Premediation: Parent Education

Families enter the divorce process with a strong need for education and information about the profound changes they are experiencing and how to manage those changes (Tompkins, 1995). Divorce parent education programs, which may be offered in a variety of formats, are designed to inform parents about four major sets of issues: the divorce (and mediation) process, children's needs and interests in divorce, postdivorce parenting alternatives that will serve to meet those needs, and effective communication, negotiation and problem-solving skills. Parent education thus begins the process of helping the parents make an informed choice about the type of postdivorce parenting arrangement that is best for their children and themselves, and as such, may be seen as an essential adjunct and precursor to the family mediation process. The primary goals of parent education are thus to improve the parents’ ability to focus on the postdivorce needs of their children by providing them with an improved understanding of the effects of divorce on children, and to increase their level of preparedness for mediation. Through a child-focused approach to parent education, it is hoped that parents will be better informed for the decision-making process of mediation (Lehner, 1992).

Parent education programs are most effective early in the divorce process. The format of such programs varies, and include small group divorce parenting education programs meeting over several sessions, single-session workshops, and individual premediation sessions with parties in dispute. Braver (1995) concluded that short programs (single session, about two hours in length) can sensitize parents to important issues and provide motivation for future learning, but behavioral change and skill development require a more in-depth approach. Bienenfeld (1988) found that the most effective programs are those with multisensory and multileveled presentations of information addressing different learning styles and individual needs. While the content of such programs is educational, the group process typically utilized in divorce parent education requires a strong knowledge base in family systems theory and child development, and skills in group work and engaging individuals who may be extremely angry or in great personal pain (Salem et al, 1995).

Parent education begins by focusing on increasing parents' understanding of the divorce process generally, including the process of mediation, and the range of services available to them. It is important to start by normalizing the adult divorce experience, providing an overview of the emotional, legal, parental, spousal and economic aspects of divorce, phases of the divorce process, and stages of loss and grief. Other specific issues that may be covered, depending on the needs of the parents, include relevant divorce legislation, the mediation process and how it differs from legal resolution of parenting disputes, and alternative models of resolving postdivorce parenting issues. Information is made available about local divorce counseling services and other divorce-related community services.

During divorce, in coming to terms with their own pain, grief and reduced self-esteem *, parents often experience difficulty keeping focused on the needs of their children; they also often lack adequate information about the impact of divorce on children and children’s needs at different ages and stages of development (Kelly, 1993; Wallerstein & Kelly, 1980). Focusing on children's needs in divorce encourages parents to begin tuning-in to the type of postdivorce parenting plan that will be in their children's best interests, and sets the stage for consideration of alternative arrangements. Parent education programs can be extremely helpful in identifying common problems and offering specific information about what parents could do to ease children’s transition to postdivorce family life. These would include: stages of child development, and how children of different ages and stages of development respond and adjust to the consequences of divorce; the developmental tasks of children in divorce; how to tell children about the divorce and strategies for helping them through the process of divorce; and the potential negative effects that various manifestations of interparental conflict can have on children.

* Update 2008 05 11: It is strongly recommended to take a look at "SHOULD SCHOOLS TRY TO BOOST SELF ESTEEM? Beware the dark side", by Roy F. Baumeister

A third element of premediation parent education examines specific issues to consider in planning for parenting after divorce, and types of postdivorce parenting plans that can be tailor-made to suit the needs of families after divorce, including shared parenting arrangements. Included in this segment would be information relating to the phases of family restructuring after divorce, tasks of coparenting after divorce; and barriers to cooperative parenting.

Finally, parent education incorporates instruction in communication, negotiation and problem-solving skills, which enables parents to not only make the best use of the mediation process that will follow, but to enhance their future negotiation and communication regarding parenting concerns. These skills will be essential as soon as parents enter mediation, and a contract for ongoing service is agreed.

Therapeutic Family Mediation

Assessment. Whereas the generic mediation model largely excludes psychological exploration and history-taking, focusing almost entirely on the future relationship between the parties (Coogler, 1979; Haynes, 1982), a therapeutic approach involves a detailed assessment process to determine if mediation is appropriate, and an examination of the types of postdivorce parenting structures that are most likely to be in the children's and parents' best interests. It also allows the parties time to tell their story and have their feelings normalized.

Assessment in therapeutic family mediation focuses on four critical dimensions: (1) the degree of acceptance of the termination of the marital relationship by both spouses, which predicts the level to which the parents are able to separate past marital issues from continuing parental responsibilities, and the extent to which they will be able to cooperate in future; (2) the nature of existing spouse relationships, which includes the degree of overt hostility, the presence of spouse abuse, the extent to which one spouse will use mediation to manipulate, threaten or control the other party, and the degree to which mediation may be used to stall legal proceedings while planning for future litigation; (3) the nature of existing parent-child relationships, which includes the degree of involvement and attachment between each parent and the children, and the presence of child abuse; and (4) the parents' expectations and desires regarding the type of relationship they would like with their children following divorce. At this stage, it is important to gather this information in the context of obtaining data about the pre-divorce family, as opposed to what the parents would like in the way of specific postdivorce parenting arrangements. The mediator's goal is to facilitate the process of building shared parenting agreements step-by-step; the task of the mediator during assessment is to obtain in general terms a statement from each parent as to the level of involvement they would like to have with their children after divorce.

The first goal of the assessment stage is to determine whether both parents are ready to enter into mediation, and are suitable candidates for the process. The mediator needs to decide whether to begin the mediation process or delay it, particularly when one partner has a continuing unrealistic hope for reconciliation, or has not come to terms with the reality of the divorce. Setting aside of negative feelings associated with the marital relationship is necessary to make best use of child-centered negotiations. Referral to divorce counseling may be required before or during mediation, particularly when there is a strong need to allocate blame, point the finger at the other partner, and recite a litany of recriminations, which some have suggested may be an essential step in the process of uncoupling (Walker, 1983).

Contraindications to mediation include cases of physical and sexual child abuse or serious neglect, marked imbalances of power, and situations where abused spouses are unable to contemplate negotiating with their former partner; the option of legal proceedings to settle postdivorce parenting disputes in such cases should be retained. It should be noted that the issue of the appropriateness of mediation in cases involving spouse abuse continues to generate much debate (Kruk, 1994; Corcoran & Melamed, 1990; Hart, 1990). Mediation proponents argue that the process can be highly empowering for abused spouses, enabling them to articulate their needs and interests and have these met within a safe forum of dispute resolution. However, while there are effective strategies to counter imbalances of power between the parties in mediation, continued marked imbalances are unlikely to produce fair outcomes.

The second goal of assessment is to determine whether, given the family’s circumstances, a shared parenting plan is indeed appropriate. Contraindications to shared parenting include the inability to care for children mentally, emotionally or physically, the physical, emotional or sexual abuse of the children or spouse, significant substance abuse, intractable hostility between the spouses, and an expressed desire of both parents for a sole parenting arrangement. There are a number of valid reasons for one parent to be opposed to shared parenting; however, opposition based on a lack of understanding of children's needs in divorce, a lack of knowledge about shared parenting, or pressure from family, friends or professionals to reject it as an option, should not be seen as sufficient reason not to consider it.

It is particularly critical to assess the nature of pre-divorce parent-child relationships, including the degree of involvement and sharing of parenting tasks and responsibilities within the marriage, competence in parenting, discipline methods used by each parent, the degree of attachment between each parent and the children, and the degree of influence each parent has in various areas related to children's growth and development. According to Gardner (1984), shared parenting is a viable option when three provisions are satisfied:

(1) both parents are capable and loving custodians--their levels of involvement with and attachment to their children are high, and they wish to continue their child care responsibilities;

(2) the parents have the potential to cooperate and communicate effectively in regard to parenting concerns;

(3) geographic distance and other logistical constraints are not excessive.

Where parents acknowledge the centrality of their children in their lives, and the importance of keeping children's interests at the forefront of their negotiations, the prognosis for shared parenting mediation is good. This is probably the mediator's most powerful lever in facilitating the parents' negotiations.

Exploration of shared parenting options. The second phase of mediation is essentially an extension of the divorce education process, in which the mediator helps the parents to consolidate the knowledge and skills gained during the parent education program. Reinforcement of communication, negotiation and problem-solving skills is particularly important, as the parties are about to embark on an assisted negotiation process; teaching these skills may include explicit instruction in regard to a particular skill, demonstrating or modeling the skill, enactment, debriefing, and extra-session assignments.

At this point, the mediator clearly declares herself or himself as an advocate for the children in the process, and assuming an affirmative stance with respect to establishing the "best interests of the child" as the objective criterion that will guide the parents' negotiations and determination of the postdivorce parenting plan. Where appropriate, the mediator promotes a shared parenting arrangement as best meeting that criterion. The benefits of shared parenting are first examined from the point of view of children and then the parents. Specific information is given about the optimal types of shared parenting arrangements for children at different ages, and for families in different circumstances.

As Walker (1993) cautions, the use of expert knowledge toward influencing outcomes can be problematic in a conflict resolution process which purports to enable the parties to find their own solutions to their disputes. It is important that the mediator not make decisions for parents; however, most parents feel that mediators should help them to generate options and examine the costs and benefits of these in relation to their children’s needs (Elwork & Smucker, 1988). Prior to the negotiation phase, the mediation process can be used to consolidate the knowledge and skills parents have gained during premediation parent education with respect to children’s needs and interests during and after divorce. While the "best interests of the child" are different in each unique family system, mediators who are well-versed in current research on child outcomes in divorce have important and valuable information to impart, which can be of enormous benefit to parents in their decision-making. After the mediator has examined in some detail both existing parent-child and spousal relationships, she or he is in a unique position to help parents tailor-design parenting plans that are uniquely suited to their situation, and reflect existing parent-child relationships.

The mediator's use of language is particularly crucial at this stage: the task is to move parents away from the legal notions of parents' claim to child ownership, to the type of postdivorce relationship that serves the children's (and family's) best interests. Shared parenting should be presented as a "neutral" position, allowing both parents an optimal relationship with their children. In advocating shared parenting, the mediator must be aware of the danger of being perceived by one parent as forming an alignment with the other; caution must be exercised in a situation when one parent wants a sole and the other a co-parenting arrangement. This may pre-empted if parents have been exposed to a divorce education program which has examined the importance of maintaining existing parent-child relationships within some form of shared parenting arrangement, or if this phase of the mediation process remains mediator-directed, in which the mediator educates the parents about children's needs in divorce, stressing the importance of continuing regular involvement of both parents after divorce, and then informs them about the range of shared parenting options available. During this time, the parents are not (yet) given the opportunity to indicate their preferred postdivorce parenting arrangement. Rather, the mediator makes clear that the development of the parenting plan will be guided by the principles of maximum parental involvement, parental continuity, and mutual decision-making regarding child care.

The mediator should emphasize that shared parenting does not necessarily entail apportioning exactly fifty per cent of a child's time to each parent, a misperception that can interfere with the formulation of a flexible and workable plan. At this stage, avoiding the issue of percentage of time each parent spends with the children and focusing instead on types of schedules and scheduling options may make shared parenting more attractive and likely to be considered. The mediator may thus introduce the parents to a range of shared parenting schedules, while emphasizing that their shared parenting plan will be "tailor-made" for them.

While the actual negotiation and formulation of the parenting plan takes place in phase three, during the option exploration phase the mediator orients the parents toward the development of a plan based primarily on the needs and capacities of the individual child, and away from what may be convenient or expedient for the parents. The age and developmental stage of the child are central: preschool children, who have a limited sense of time, in most cases need to have contact with both parents on a relatively frequent basis; with school-age children, there are more shared parenting options available; adolescents may need the flexibility of not being tied down to rigid schedules so that they have the time available to pursue their own developmental needs and interests. For all children, consistency and (at least initial) predictability of schedule are important; the use of a monthly calendar, which is duplicated so that there is one for each household, gives children a clear sense of where they are going to be and when (and parents a clear picture of their parenting times for the month). The importance of children initially remaining in the same schools and maintaining the same friendship and neighborhood ties should be emphasized.

Before they enter the negotiation phase, it is important for parents to know that, as there is a wide range of family patterns and dynamics, they will be able to select from a range of shared parenting alternatives. Further, whatever parenting plan they formulate will not be irrevocable: they will need to consult each other about their children's changing needs at different ages and stages of development, and are likely to have to modify the arrangement several times during the forthcoming years.

Facilitation of negotiations. In the negotiation stage, the feasibility of a shared parenting arrangement is examined from the children's and parents' perspectives, and practical needs and constraints in terms of day-to-day concerns and the realities of the entire family are considered. The goal is to help the parents design a parenting plan meeting not only their children's and their own needs and interests, but also their particular schedules and lifestyles. The mediator's tasks at this stage are to reinforce the parents' concern for their children's needs and interests as primarily guiding their negotiations, help each parent to listen to and validate the needs and interests of the other, and identify commonalties in their stated interests--including that of ensuring that the welfare of their children is paramount in whatever outcome they negotiate. Mediation becomes a process of building on areas of agreement, and assisting in the negotiation of issues around which there is disagreement. Each parent will be expected to modify some of his or her own personal desires, on the basis of the children's needs, those of the other parent, and the everyday realities of everyone's lives.

In addition, the mediator may wish to meet directly with the children, particularly those who are older, to explore their concerns and preferences regarding postdivorce parenting arrangements. It should be made clear that the parents shall ultimately determine these arrangements, but that it is important for them to have input from the children in arriving at their decisions. The involvement of children in the mediation process may also be helpful toward the goal of parental cooperation in parents' future dealings with each other.

Ricci (1980) outlines three time dimensions and two aspects of decision-making as central considerations in the formulation of a shared parenting plan. Time dimensions include overnight stays (how many will there be with each parent?), the actual time the child and parent spend together (time spent in the daily routines of caretaking and parenting), and activity time (time spent together in recreation and special activities). Difficulties are likely to arise if one parent has little activity time but the main responsibility for routine time, or vice-versa, or if all overnights are with only one parent. Parental decision-making includes decisions made in the course of daily child-rearing, and major decisions (including schooling, religious affiliation and training, and major medical decisions). Again, a plan in which one parent has power to make major decisions without any responsibility for day-to-day decisions can be highly problematic.

The actual negotiations follow a set procedure, established by the mediator. Ware (1982) suggests a process of having each parent develop three lists, in sequence--one from their perspective of their children's needs, one on the basis of their own interests, and one from the point of view of the current realities of their lives--with respect to Ricci's (1980) five dimensions of shared parenting. Kruk (1993b) provides a framework in this regard, including the salient categories to which parents can refer as they draft their three separate lists. After completion, the lists become the foundation for the negotiation and ultimately the final written agreement.

In addition to the three lists, a time survey--having each parent outline what a typical week would look like when the child is living with them--may also help the parents consider realistically what will be involved in parenting as separate entities, think about their strengths and deficiencies as caretakers, and identify the skills they will need to be able to carry through their shared parenting plan.

Through the negotiation stage, proposals and counterproposals regarding various time-sharing formulae are made, and as agreement is reached on particular issues, a parenting plan begins to take shape. Plan formulation proceeds from a skeletal structure to the specifics of the actual shared parenting arrangement; the end product of mediation is a written plan for cooperative shared parenting. In many cases, considerable detail and specificity will be required to avoid initial confusion and conflict, including details of scheduling contact with the children, and a list of which responsibilities are shared and which are held by each parent. The need to keep dates and times absolutely sacred, until a degree of trust and cooperation develops, should be emphasized.

While shared parenting plans take many forms, it is important to include the following in the written agreement:

(1) A general statement to begin the agreement--the parents will cooperatively share the parenting of the children, with cooperative shared parenting being defined as having two central elements: equal responsibility for sharing in important decision-making as well as the de facto daily parenting of the children, and parental cooperation with respect to same. This includes respect for one another's parenting style and authority; the parents agree to say or do nothing that will harm the relationship of the other parent with their children. A helpful clause to include in this section is, "The parents agree to foster love and affection between their children and the other parent."

(2) The sharing of parental rights and responsibilities--the parents agree to confer on all important matters affecting the welfare of the children, including education, health, and religious upbringing. They agree that each will have access to medical and school records. A clause may be added saying that day-to-day decisions are the responsibility of the parent with whom the child is living.

(3) The specifics of the actual time-sharing and residential arrangement.

(4) Details regarding holidays and special occasions.

(5) The agreement time period, and amendments to the agreement--a clause indicating the length of the agreement, and that the plan will be reexamined at a later fixed time, or from time to time. If no revisions are deemed necessary after the agreed time period, the agreement is automatically renewable. A clause specifying the manner in which parents will settle disputed issues in the future, with an emphasis on cooperation and a return to mediation if necessary, may also be needed.

The aims of cooperative shared parenting mediation are two-fold: to help the parents develop their own shared parenting plan, and to help them establish an atmosphere of cooperation with respect to parenting issues. Ricci (1989) emphasizes the importance of moving the parents beyond parallel parenting, where there is little or no interaction between the parents, communication is strained or non-existent, and the child's loyalties are divided, to shared parenting within a business-like working relationship, where parents can talk with each other about parenting issues, and ultimately to cooperative parenting, which builds on a spirit of forgiveness and easier give and take, flexibility, and following the "spirit" of the plan rather than the "letter" of the agreement. During the negotiation stage, the minimum expectation is that parents are able to achieve a business-like relationship; as parents begin the process of implementing the shared parenting plan, cooperative parenting may be established as an objective.

Continuing support/troubleshooting. Walker (1993), in a critique of this model, questions whether family members have the capacity and motivation to attain the ideal of cooperative shared parenting after divorce, suggesting that parallel parenting may be the best outcome for the majority of families, given the multiple and complex transitions and losses facing family members.

A follow-up phase at least provides divorced family members with the opportunity to move beyond parallel parenting to cooperative shared parenting. To this end, the mediator monitors the parents' progress and intervenes as needed, helping them work through conflict and reinforcing and consolidating the communication, negotiation and problem-solving skills taught during the parent education and mediation process.

Explicit guidelines for cooperative shared parenting can be developed at the time the parenting plan is drafted. These may include: respect the other's parenting rules; avoid criticizing the other parent, directly or indirectly; avoid placing a child in the middle of an argument or using a child as a messenger; stick to the time-sharing schedule and keep promises, but also be flexible in a way that meets the children's and the other parent's needs (try to accommodate the other parent's request for changes, but the other parent should remember that even small changes to the schedule that occur with little forewarning can cause major problems); make transitions as comfortable as possible for the child (be positive about the child's stay with the other parent; be courteous with the other parent; once the child settles back in, let her talk freely about the other parent or the other home); and respect each other's privacy (keep contacts and communications restricted to set times, and to child-related matters).

Ideally parents should develop a communication system involving routinely scheduled and open forums or "parenting meetings", to which they may bring their stockpiled child-related concerns. Transition times (when children are transferring between their homes) are not appropriate times to discuss important matters, and contacts during stressful times should be avoided.

While the shared parenting plan should generally be highly structured at the beginning, over time, flexibility, creativity, and compromise should be encouraged. In addition to teaching parents negotiation and problem-solving skills during mediation, the expectation that changes to the plan are inevitable should be established; it is inevitable that shared parenting arrangements will require reevaluation and change over time, based on children's changing developmental needs and the parents' own changing circumstances. Future changes should not be regarded as indicative of failure of the original parenting plan, but rather the growth and evolution of a living agreement over time. Mediators should attempt to ensure that parents have developed the tools to negotiate these changes.

Contingency planning sets the stage for future changes. Potential obstacles and areas of conflict regarding parenting can be anticipated and examined; issues such as changing job demands, relocation, and how to deal with children's changing developmental needs need to be discussed. Remarriage or cohabitation and stepfamily formation may affect shared parenting in a significant way, as the problem of mistrust often reemerges when new members join the family. Anticipating and preparing for such events can be an important preventative measure.

Once a shared parenting plan has been negotiated and drafted, it should be implemented for a specified trial period, lasting six to twelve months. This is particularly important when shared parenting was not the option of choice of both parents (or had not been considered) at the beginning of mediation. At the end of the trial period, the plan is reviewed and made permanent, modified, or abandoned. Knowing at the outset that the shared parenting arrangement will be reviewed formally after a specified trial period will help parents agree to try the arrangement, despite their anxiety about committing themselves to an unknown way of life. Parents are generally reassured in the knowledge that the plan they negotiate is not irrevocable.

Another important goal during the "troubleshooting" stage is that of assisting the parents in their own and their children's adaptation to living as two households. Establishing a routine and an environment conducive to children's adaptation to the new shared parenting arrangement are critical tasks for both parents. Children are generally anxious to know the specifics of their new routine, and the predictability of a clear schedule facilitates adaptation. They also need to develop a sense of "belonging" in both homes, and will adapt more easily if they have a place of their own in each house, which they have helped in creating. Other important considerations include deciding on children's items that need to be duplicated (toothbrushes, nightclothes, school supplies, diapers and baby supplies for infants), those that are divided between the two homes (shoes and clothing apportioned in measure with how much time is spent in each residence, toys, books), and those that will go back and forth between the two homes (cherished toys, bicycles, musical instruments) (Ware, 1982).

The troubleshooting phase will vary in length, depending on the needs of the parents, and their ease of adjustment to the new shared parenting routine and the boundaries of their new co-parenting relationship. Where conflict levels are high or when one of the parents is ambivalent about the shared parenting arrangement, continuing mediator support is critical.

In the future, parents may need the services of a mediator to assist in their ongoing parenting negotiations; they should be urged to return for mediation beyond the trial period, as future issues develop or past difficulties re-emerge.

Use of the Model

Parent education and therapeutic family mediation are adjuncts to the service delivery of social workers and human service professionals working with families during and after the divorce transition period, and represent an alternative to mainstream mediation models emphasizing a neutral orientation to the resolution of postdivorce parenting disputes. The model presented in this chapter is particularly suited to the development of parenting plans; for the majority of families, cooperative shared plans are seen to be the best possible parenting arrangements that both parents can make for their children, insofar as they reflect parent-child relationships in the original two-parent home.

The model has been highly successful both with couples who have voluntarily involved themselves in the mediation process, and in those cases where one or both of the parents have not entered mediation on a voluntary basis. The model's emphasis on assessment and education in the beginning stages is well suited to work with couples mandated by courts to attempt to develop a parenting plan, and provides an effective mechanism for determining the appropriateness of mediation and shared parenting through assessment of the nature of existing spousal and parent-child relationships. Consistent with the findings of Johnston & Campbell (1988), the model has also worked well with high conflict couples who have reached an impasse in their negotiations. The model has been most effective with couples presenting at an early stage in the divorce process, before postdivorce parenting patterns become established and consolidated.

In its exclusive focus on postdivorce parenting issues, the model goes counter to the prevailing (North American) trend in mediation toward assisting divorcing couples in their negotiation all divorce-related matters, including the financial aspects of divorce (child and spouse support, and property division). Couples most benefiting from the process are those whose primary dispute relates to postdivorce parenting, and either concurrently or subsequently address the financial aspects of divorce within or outside mediation. All parenting plans developed in mediation are made "without prejudice" and are subject to review by the parties' legal representatives, who assist toward legal formalization of the agreement.

In ensuring that children's needs and interests and shared parental responsibility remain at the forefront of the mediation process, the therapeutic mediation/parenting plan model sets the stage toward a high degree of clarity in orders made by the court, as negotiations focus on three distinct time dimensions of postdivorce parenting, and two aspects of parental decision-making: residence and contact are clearly delineated in terms of overnight stays with each parent, actual time spent together, and activity time; parental decision-making is broken down to include negotiation of both day-to-day and major decisions.

Conclusion

As Tompkins (1995) notes, no system of conflict resolution in the realm of postdivorce parenting is a panacea; there will always be a percentage of parents that no amount of negotiation assistance or enlightened divorce legislation will help in the construction of a parenting plan. As discussed, the option of traditional legal processes for those who are not good candidates for mediation must be available. In some cases, lawyer negotiation may result in the development of a parenting plan; in others, litigation may be the only means left after such efforts have failed.

Conversely, there will also be a percentage of couples who, no matter what the divorce process entails, will need no assistance in maximizing the positive adjustment of their children to divorce. It is the majority of families who fall between these extremes that will benefit from the advantages of parenting plans, developed by means of parent education and therapeutic family mediation.

Cooperative shared parenting plans best meet the needs of most children of divorce, and hence are best suited for the majority of divorced families. These plans comprise two essential elements: both parents retain an active parenting role and decision-making authority with respect to their children, and both parents have successfully negotiated the task of separating their previous marital conflicts from their ongoing parental responsibilities. Such an arrangement is regarded as the healthiest and most desirable postdivorce outcome for all family members.

With adequate therapeutic support, the ideal of cooperative shared parenting could become a reality for a significant proportion of separated, divorced and remarried families. Such an outcome has largely eluded those practicing traditional approaches to dispute resolution in divorce, including mainstream models of mediation. When applied to the divorce arena, the mainstream model, with its highly structured and neutral orientation, is extremely limited in its potential: a pure form of mediation which is strictly rule-governed and limited to dispute settlement does not permit the wealth of data related to positive postdivorce outcomes to emerge and guide the mediation process.

A therapeutic/parenting plan approach to family mediation offers an effective alternative to the mainstream mediation model, and may be the key in establishing cooperative shared parenting as the norm, rather than the exception, for divorced families. The model represents a radical alternative to traditional approaches: its goals are therapeutic (facilitating the adjustment to divorce for all family members, restructuring the parents' relationship, restructuring parent-child relationships, enhancing communication and problem-solving skills); the mediator's role is highly interventionist (influencing a settlement that is in the "most adequate" if not "best interests" of the child as well as fair to both parents); assessment and detailed history-taking with respect to existing co-parental and parent-child relationships are emphasized; and interventions are geared toward the promotion and facilitation of cooperative shared parenting after divorce. The mediation process is transformed into a longer-term therapeutic endeavor, focused not only on the production of a shared parenting agreement, but on the durability of that agreement.

Mediation focused on the development of postdivorce parenting plans requires a distinct approach; the neutral mainstream model, designed for use in vastly diverse arenas, has shown itself to be an unwieldy instrument in the realm of family transition attendant to divorce. The model presented here is an effective alternative, ideally suited for use by social workers and human service professionals working with families in transition, specifically designed toward the development of postdivorce parenting plans, and operationalizing the principle of shared parental responsibility underlying emerging developments in divorce law.


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Posted with permission by coparent@interchange.ubc.ca

See also:

Edward Kruk, Ph.D..  Address details and references to other writings by him are accessible at http://www.swfs.ubc.ca/about_us/faculty_pages/kruk.htm and at his own website.

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