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 parents 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
childrens 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 childrens
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 childrens 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 childrens 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 childrens 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 childrens needs and interests. Mediation aims to restructure parent-child
relationships in a manner that meets the childrens 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, childrens
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 childrens 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
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.
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).
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 childrens 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 childrens 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
- 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;
- Children's needs and interests in divorce;
- Postdivorce parenting alternatives;
- Communication, negotiation and problem-solving
skills. Therapeutic Family Mediation
- Assessment to determine whether the parents are both ready
to enter into therapeutic mediation, and whether shared parenting is indicated;
- Exploration of shared parenting options and actively
promoting a parenting arrangement that meets the children's needs first and the parents'
- Facilitation of negotiations toward the development of an
individualized cooperative shared parenting plan, which outlines specific living
arrangements, schedules, roles, and responsibilities;
- 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 childrens 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
childrens 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.
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
familys 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
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
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 childrens 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 childrens 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
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
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
(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,
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
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.
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 email@example.com
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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