What Happens in Custody Mediation?
I think the best way to describe what happens in mediation is with an example:
Terri called my office to ask about mediation. A friend who had recently divorced told her how pleased she was with the result achieved when she and her husband had gone through mediation, so Terri thought it was worth considering.
When she and Eli had decided to divorce, she visited a family law attorney but was dismayed by the retainer ($8,000) and the tone of the lawyer. “He said that Eli and I are now adversaries, that I must do everything I can to protect myself from Eli and to get as much money as possible. That’s not what I want. I’m sorry that our marriage hasn’t worked out, but I’m not trying to take Eli to the cleaners.”
As we talked further, Terri told me that they had a four-year-old daughter, Melanie, and that their daughter’s welfare in this divorce was the highest priority for her and Eli. She explained that her husband taught at the university and that she had stayed home since Melanie’s birth.
After Terri and I talked on the phone, I sent her some literature about mediation to share with Eli, and soon afterwards they made an appointment with me. When I entered the reception room, they were talking to each other. I could feel some tension in the air as we walked back to my office, but they were trying hard to be cordial.
Both appeared to be around thirty. Terri was small, with short, dark hair and a veiled scowl. It was summertime, and she was wearing shorts and a T-shirt, explaining that she had just dropped Melanie off at day care. Eli was a tall man, heavyset and sort of sloppy looking. His red hair stood tall on his head and his distracted gaze suggested that he was not comfortable.
After I talked to them about mediation and how the process works, we discussed Melanie – how they had cared for her in the past, what they wanted for her in the future, and how to best share her time and make decisions about her after the divorce.
Terri started the conversation. “Well, I’ve always taken care of her. I’m at home with her all day. I know Eli’s a good dad”, she added, “but I’m her mother. She needs me.” Having organized her life around Melanie’s needs since the child’s birth, Terri seemed apprehensive that Eli might dismiss her maternal role.
According to Terri, Eli had participated in raising their daughter when he was home, but he had not been very involved in her day-to-day care; she was reluctant to enter an agreement that gave him much of that responsibility. Eli responded with irritation. “I know she needs you, Terri, but I take care of her too. I read to her, put her to bed, feed her. She needs me too.”
Both Mother’s and Father’s Parenting is Vital to Raising a Healthy Child
Melanie was clearly the love of both parents. They proudly showed me a picture of her cuddled up in her mother’s lap.
I asked both of them to talk about how they envisioned taking care of their daughter after the divorce. Eli didn’t want to be relegated to a minor role in his daughter’s life; he wanted to be a good father. As we talked, it became evident that they were not so far apart in their ideas about Melanie’s future care.
Sometimes during a session, anger and suspicion caused Terri and Eli to misunderstand the other and threatened to lead them into arguments. Each time I would guide them back to the topic at hand, help clarify misunderstandings, and summarize in neutral language what each had said about his or her hopes and desires for Melanie.
As we were discussing sharing responsibility for Melanie’s care while Terri was looking for work, Eli volunteered to pick Melanie up from day care each day at two in the afternoon. His teaching schedule afforded him some flexibility, and he liked the idea of spending that time with his daughter.
Terri frowned. “That’s not necessary. I can work my interviews around the day care schedule”, she responded uneasily.
“Maybe you can,” Eli replied, “but you don’t need to. It’s easy for me, and it’ll give me more time with her.”
“I’m telling you it isn’t necessary”, Terri countered with an edge to her voice.
Eli looked hurt and frustrated. “You’ve got to quit being so controlling. You act like I can’t take care of her. She’s my daughter to! I can take care of her just as well as you can!”
“Well, you haven’t done it since she was born! You’ve just wanted to do what was fun and stuff that was convenient for you. Now all of a sudden you want to spend all this time being super dad!”
I interjected: “Terri, it sounds like you’re concerned that Eli may not be prepared to give Melanie the time and attention she needs, much of which you’ve give her up to now. Is that right?”
“Yes! I’ve always been there to do what he didn’t want to do. He doesn’t know what it means to have the full care of a four-year-old! He thinks it is easy!”
“Do you think it’s true that Terri has provided the care for Melanie so that you could concentrate on your work?”
“Yes, sure. I know she’s spent more time with her than I have. And she’s probably right that I let her do more of the caregiving. But I can do those things to! She’s just got to give me a chance!”
In this way, Terri got to voice her concerns about yielding some of Melanie’s care to Eli, and Eli was able to reassure Terri that he was willing to assume the responsibility.
“I know, I know,” Terri conceded. “I just don’t want to move too quickly. Maybe we could try it once or twice a week and see how it goes.”
Eli nodded. “Sure. That’d be fine.”
As we examined their schedules and considered Melanie’s needs, Terri and Eli gradually worked out a flexible arrangement for sharing their child’s care and making decisions about her. They realized they would need to make adjustments when Terri returned to work and her schedule changed, but they began to trust that they could handle those changes cooperatively.
Eli, however, looked nervous about the likelihood that he would be moving out of the house. He reported that he’d talked to a divorce attorney who advised him that if he moved out he might lose rights to Melanie.
“He told me that I should stay in the house with Melanie if I want to make a strong case in court for having more time with her. I’ve been afraid that if I moved out, Terri wouldn’t let me see Melanie when I wanted.”
Children Need Our Financial and Emotional Support
Once we had worked out a reasonable schedule for Terri and Eli to share time with their daughter and it appeared that they could agree on how they would make decisions, Eli became less concerned about moving out. He then found it easier to talk about the house.
Both parents agreed that Melanie should be subjected to as little change as possible while she was adjusting to her parents’ separation; because the child was used to being mostly with Terri, Eli agreed that it would be better for Melanie if she and her mother stayed in the house for now.
We next considered how the bills would be paid during the divorce, as both Terri and Eli were anxious about that issue. Terri pointed out that she currently had no source of income.
“Look, I’m not trying to make Eli suffer, but I don’t have any other money. The mortgage has to be covered, groceries bought, utilities paid, and I need new clothes if I’m going to look good for a job interview.”
So the three of us listed all of their expenses, including what each needed for food, clothes, housing, and utilities. “Can you stop withholding retirement from your paycheck for now?” I asked Eli. “Can you make do with one suit for interviewing?” I asked Terri. In this exercise, Terri saw just what expenses Eli was facing, and Eli saw the realities of Terri’s financial situation. They both grappled with the limited income that was available to cover their bills.
Gradually we cut the expenses down to the necessities and worked out an arrangement for paying them, but it was clear that money would be very tight until Terri found a job; she needed to start looking as soon as possible.
Terri had worked in book keeping before Melanie’s birth and hoped to get back into that field. However, she was nervous that it might take her considerable time to find a good job, and she didn’t know how she would manage after the divorce if she didn’t have work by then. After some discussion, they agreed that Terri would start looking for employment immediately and that they would not finalize the divorce until she had a job.
With those decisions made, I asked them to start gathering values for all of their assets – the house, the two cars, Eli’s retirement accounts with the university, their bank accounts, and their household goods – and suggested ways to do so. We made an appointment for three weeks later to discuss child support and property division.
At the end of two hours, Terri and Eli looked relieved that they had agreed on everything that needed to be worked out immediately. They had every expectation that they would resolve the rest of the legal issues over the next few weeks. I asked them for a retainer of $2,000, based on my hourly rate of $280, explaining that if we didn’t use it all, I would refund what was left; if we ran over that amount, I would ask for more later. They paid the retainer and left my office looking somewhat relieved.