If you find yourself in the situation with your parent needing to leave their home because you think it's not safe anymore, consider mediation as a first option. In Elder Mediation, everyone will have a seat at the table. The idea is that everyone will get to express their concerns, their interests, their desires, and most importantly, listen to the other person's concerns and interests, and desires. 

{4 minutes to read} When I’m working with parents and we are discussing what each proposes for a parenting plan, I ask them to phrase their proposal in terms of what is in the child’s best interests, and not necessarily what’s best for them.

What does “best interests of the child” actually mean though? If we use the standard of what a judge would consider when making a custody determination in an adversarial proceeding, these are some of the factors that would be used:

• The concept of primary caretaker — has one of you been more responsible for the typical care of the child?
• What are your respective parenting skills? Consider each of your strengths and weaknesses as a parent.
• If your child has special needs, can one of you better address those needs?
• Your physical/mental health — will these considerations impact your parenting ability?
• The existence of domestic violence — whether it is emotional, mental, physical, or sexual abuse.
• Work schedules — what are your respective availabilities and will they change in the future?
• The wishes of the child — relevance can vary depending on the age of the child.
• Each parent’s ability to foster a relationship with the other — absent domestic violence considerations — which of you is more likely to encourage a consistent and healthy relationship between the children and the other parent?

In mediation, while these factors are discussed, there are additional aspects that have been raised by parents. They include: 

• Does the present age of a child warrant spending more time with one parent?
• Will the parties’ financial circumstances support two homes for the child in the standard of living the child previously enjoyed?
• Do they believe that they can amend the access schedule going forward as a child’s needs and wishes may change?
• Is there a need for stability for the child that makes an alternating schedule problematic?
• Are there other, specific benefits that only one parent may provide?

In a mediated discussion, it can be very difficult to place your child’s needs above your own desires — especially if your feelings toward the other parent are negative. I am consistently heartened, though, at just how many parents are able to do just that, even when in deep conflict with the other parent:

• The non-residential parent will rent a small apartment so the residential parent can afford to stay in the larger marital home with the child in the same school district.
• After discussion, a parent will give up the idea of an equal parenting plan when they realize that even though they want to share equal time with their child, such a plan may not be best for the child.
• A parent recognizes that having a child with a childcare provider because of their demanding work schedule doesn’t make sense if the other parent can be with the child because of a flexible work schedule.

These are painful choices but can be made in a respectful process in which both parents can reach an understanding about the child’s needs in coordination with parental sacrifices. This in turn can result in an acceptance that would be more difficult to achieve in an adversarial process, where the outcome is dictated to you — not by you. 

{3 minutes to read} I know that it has been a constant refrain of mine that budgets are vital in mediation, but I learned how truly indispensable they can be during a recent one.

The couple were both high-wage earners, and one parent was agreed upon to be the primary residential parent. The non-residential parent proposed a different type of child support payment in which, rather than payment of the standard child support that would be calculated under NYs Child Support Guidelines (CSSA), the non-residential parent would pay 100% of certain direct expenses for the child, including child care, clothing, medical insurance and expenses, private school tuition, extracurricular activities, college, and other miscellaneous items.

While I wholeheartedly respect the right of self-determination, I was concerned that this would result in a net loss after expenses are paid for one or both of the parties. This arrangement is not the usual one, but it is the one that these parents wanted. We just had to confirm that it would work for both of them, so we spent quite a bit of time to make sure that each had an accurate and complete budget.

Using the budget to demonstrate what the non-residential parent would be paying totaled $40,000 under the proposed plan. Under the CSSA, the support plus statutory add-ons totaled $49,000.

Budgets also demonstrated that if the CSSA was strictly applied, the net received by the residential parent after paying taxes and expenses was greater than that netted under the initially proposed plan. The parties ultimately agreed to have the non-residential parent also pay the difference of $9,000 per year to bring the payment to the CSSA amount. This change would still allow the non-residential parent to have sufficient disposable income under the budgets.

They also agreed to place protections into the Agreement to insure that the parties would remain in substantially similar financial positions going forward: 

• If the residential parent is unemployed for any reason, traditional child support would be paid under the CSSA.
• There would be a full review of child support every three years, or if either party’s income increased or decreased by 15% or more.
• If they agreed that the child would attend public and not private school or other major changes in expenses arose, child support would be fully reviewed and recalculated.

While mediation permits clients to determine their own outcome, it remains important to reality test those outcomes to ensure that the plan will be in the parties’ best interests — and budgets are essential. 

{3 minutes to read}

In an earlier post, I described the benefits of using a financial professional who acts as a neutral in mediation, but sometimes that may not work for you. Here are some factors to consider when deciding which will be best in your case.

An Advocate

As a Neutral

Which style is better for you depends on your comfort level in the process and willingness to make decisions as to support and equitable distribution. When you are fully comfortable, understand what is being proposed, and the ramifications of the different choices, making informed decisions is easier.

I have had successful mediations with both financial professionals as advocates and as neutrals, and while I admit I prefer that the financial professional be a neutral, the decision is one made by the parties. If you and your spouse disagree on the type of financial professional, you can mediate that issue and agree upon parameters as to the role the financial professional will play. 

When divorcing, some couples become somewhat obsessed about splitting everything evenly. When it comes to the kids, a 50/50 parenting plan without some flexibility can potentially do more harm than good. Focusing on how much time your kids are spending with the other parent can be self-defeating when it comes to your relationship with the children. 

{3 minutes to read} Now that you have decided on the access schedule you will use in your equal parenting plan, there are some other terms that you might want to include in your agreement.

Tweaks to the On-Duty Parent Responsibilities

Typically, the on-duty parent is responsible for everything having to do with the children during their access time. But, you may want to modify that in some circumstances: 

• If you have children with different extracurricular activities in different places on the weekends, you may want to share those responsibilities no matter who the on-duty parent is. 
• If one of you is more observant of the children’s religion, that parent may want to be responsible for taking them to services or religious education. 
• If a child is sick or school/camp is cancelled unexpectedly, you may want to provide that if the on-duty parent cannot be with the child, they give the other parent the right to be with the child before arranging for child care. Or, you can provide that if neither of you can be with the child, arranging for child care is a joint responsibility and not just one for the “on-duty” parent.

• If a child wakes up in the morning and is ill and can’t go to school/camp or school/camp is canceled? 
• If a child becomes ill or school/camp is let out during the day?  

You may decide that

• The parent who takes them to school/camp remains on-duty until the other picks up the children.  
• The parent who picks up the children that day is on-duty as soon as the children are dropped off. 
• You choose an arbitrary time for transition, such as noon.

It doesn’t matter what you choose so long as your agreement is clear about it. The last thing you want is an argument as to who is responsible if there is an urgent situation.

What if there is no school/camp on a transition day?

You may decide to adhere to the school/camp schedule in terms of transition time. Or, you could provide alternate hours for transitions. Again, as long as it is clear, you may agree on whatever you both think works best.

Taking the time to consider these points in mediation will be well worth the time spent, if it can help you to avoid future conflicts in implementing your plan.  

{3 minutes to read} Reaching the agreement that you both want to share substantially equal time with your children is clearly a very meaningful decision, but it isn’t the only decision you will need to agree upon in terms of your parenting plan. There are many options in terms of parenting schedules that you will need to consider, and that can be a source of conflict.

There is no “right” schedule, as it all depends on your children, their developmental capabilities, their activities, their commitments, and your work schedules. As always, what must be paramount is what is best for your children, and not what your research may have indicated is the best schedule, or what may have worked for other parents you know.

These are some schedules that you can consider:

One Week With Each Parent

This could be helpful for older children who want consistency, or if transitions between the parents are problematic. But it has an obvious drawback in terms of the children being away from each parent for a long period of time. If you are considering this, you may also want to consider some mid-week access with the other parent to help the children feel connected with both parents.

3-4-4-3 Schedule

1. Neither parent ever having a full weekend with the children; or
2. One parent having the majority of the weekend time every week.

2-2-3 Schedule

2-2-5-5 Schedule

Keeping in mind that you are choosing these schedules in the abstract, it’s important that you provide for reviews of the schedule and be cognizant of whether or not your well-intentioned schedule is working out for the children. You should also provide for a process to resolve a dispute if one of you thinks that the schedule is working and the other does not.

In my next post, I’ll address some other considerations for equal parenting plans, no matter which schedule you choose. 

{3 minutes to read} Since New York on PAUSE went into effect, parties have been mediating virtually — either online or by phone, and this may even continue as businesses begin to reopen. I would like to share with you some of the differences that I’ve noticed in my mediation meetings via Zoom.

Technical Difficulties

We all may be subject to an unstable internet connection and noisy distractions from dogs or others in your household. Your mediator should let you know in advance if such difficulties make the mediation too difficult. In that case, you can take a break and come back when things have settled down, so you don’t have to feel anxiety over conditions that are out of your control.

Duration

Documents

Your mediator will ask you to pre-sign the Agreement to Mediate and scan it back before the mediation begins. A review of the Agreement will then take place before the meeting begins. Your mediator will also let you know what documents should be provided before the meeting so you can be as productive as possible during the meeting.

Caucusing

A caucus is when the mediator meets with you individually. In Zoom, the mediator can put you into separate “rooms” in order to have a caucus. If caucusing is part of the mediator’s protocol or something that you may want to request, you can be assured of privacy in that discussion.

In general, there are definitely some benefits in online mediation such as easier scheduling and no worries about commuting, traffic or parking. Of course, all that is countered by possibly having children at home during the mediation — or other lack of privacy — as well as feeling that it is difficult to make a connection with your mediator. However, if you make your mediator aware of any issues you might have, you can then discuss possible resolutions to meet your concerns.

As long as you are committed to the process, online mediation can be as beneficial as an in-person session. Online mediations may also be a practice that continues long after the pandemic requires it. 

Though the end of year holidays may be long over when this video is published, those holidays prompted my discussion of this topic for divorced couples. Sharing the kids during all of the holidays throughout the year is often a difficult subject to tackle, but there are some practical ways to work out the logistics so that your kids will have good memories of spending holiday time with their parents. 

{3 minutes to read} I recently read an article in the New York Times by Dhruv Khullar, MD, in which he wrote about the possible detrimental health effects of feeling regret.

Dr. Khullar believes that doctors often ignore the toll that regret can have on someone: “We often don’t explore the role regret might be playing in the distress many patients and families experience, or acknowledge it when it’s clear that it is contributing to their pain.”

The article focused on regret and the consequential feeling of guilt experienced by someone who delayed addressing a health care concern, either for themselves or for a loved one. But it also noted other circumstances where feelings of regret can haunt someone.

Regret certainly has its place in a separation or divorce. Someone wanting to stay in the marriage could feel “if only I was more aware of their unhappiness, we would still be married.” Someone who prolonged leaving could feel regret about the economic consequences in having stayed married for a longer period of time.

Objectively, of course, it doesn’t help to feel regret. Adding guilt or being angry at yourself on top of the myriad of emotions you are feeling is not helpful. But how does one avoid it, or at least lessen its impact?

Dr. Khullar suggests:

“Simply naming regret — creating the space for patients to confront and explore this emotion is an important step ...”

In the medical context, he believes that the doctor should then reassure the patient or their family members that “they made the best decision they could with the information they had.” Further, the uncertainty of medicine does not guarantee that, even had the person acted in the way they feel they should have acted, the result would be different.

In the context of a couple separating, it’s also uncertain that having taken the action you regret not taking, the effect would have been different. You are always dealing with another person over whose feelings and emotions you have no control. You addressing your spouse’s unhappiness doesn’t guarantee that you would not have gotten separated. And letting the other person know you want out of the marriage may not have resulted in a timely separation and financially beneficial settlement, if they weren’t ready to move forward at that point.

So, if you’re feeling regret that is interfering with your ability to move on, get the reassurance and support that you need from a mental health professional, friends, or family. It can help you to stop blaming yourself, and recognize that contrary to popular belief, hindsight is not always 20/20, especially in areas where emotions are a large part of the dynamic.