Written by Dr. Lynne C. Halem

The lead editorial in the March 19, 2012 edition of The Boston Globe read, "After success with alimony laws, task force should review custody."

Sensing that a climate for reform has arisen in the Massachusetts legislature, The Boston Globe sees a new opportunity to broker tensions between fathers' rights supporters advocating for determinations of joint custody in all case and opposing factions and groups who have expressed a willingness to discuss legal practices and even biases in an open forum.

Reform, and in particular legislative reform, is by no means an easy accomplishment.  The Boston Globe refers to a year-long debate on alimony, but the road to the March 1, 2012 alimony law began decades ago with the culmination of the heated and passionate debate in itself extending well over a year.  Change is never simple; proponents of one issue are faced by opponents who are often equally tied to a different view of the problem and its solution.  Yes, the alimony law was, in many respects, a striking, and even surprising, compromise by different opposing groups.  Custody, like alimony, is an issue fraught with differences and beset by emotions.  No one wants to feel that the end of a marriage marginalizes their parental role or relegates them to the role of a visitor.  Conversely, no one wants children's best interests to be brushed aside for legislation that automatically assigns joint custodianship to all divorcing couples.

Aside from any consideration of the interests of children, not all parents want or are able to assume responsibility for shared custody.  What then happens to these parents?  How are those whose employment involves late hours or heavy travel schedules able to handle the assignment of shared custodianship?

Obviously, the labeling of custody is not the crux of the problem or the answer to the present debate, although some would argue otherwise.  The real issues lie much deeper and are, therefore, much harder to resolve.  If parents wish to remain as active participants in their children's lives, they should.  If parents wish to collaborate in the decision-making that influences the upbringing of their children, they should.

Few would disagree with the importance of parents remaining actors in their children's lives.  Obviously, it is in their children's best interests to know that they have two parents who care about them and are able, as needed, to function as a couple in their best interests.  Yet these statements do not automatically translate into a mandate for universal joint custody in Massachusetts.  For couples who are able to work together collaboratively and can be available to equally share the oversight and care of their children, joint custody may well be the option of choice.  For others who have time or financial constraints limiting their availability or for couples who believe that their children would best be served by having a primary residence, joint custody may not be appealing to them or be the best option.

The real issue is how to customize custodial arrangements to adapt to the special, and therefore unique, needs of each family.  A collaborative approach to fashioning custodianship cannot be legislated or imposed by judges.  No one can force combative parents to interact with thoughtfulness, goodwill, and flexibility.  Parents, first and foremost, need to see the very real benefits in providing their children with two active and loving advocates.  The actual parenting schedule needs to accommodate children's and parents' schedules and needs, whatever it is called.  Counting hours to achieve equality may be a mathematical exercise, but it is rarely a child-centered approach.

We suggest that mediation can offer the best and most productive approach to fashioning custodial arrangements. Parents do not need to wait for legislative change to engage in creative problem-solving.  Naturally, not all couples are able to work together.  However, it may surprise many how effective mediation can actually be in cutting through entrenched views and fears and opening up new channels of communication.  Polarization helps no one; court determinations rarely produce long lasting unanimity; at least one party feels wronged and not infrequently, regardless of the ruling, both sides are displeased.

Agreements structured by parents, for their children and for themselves, provide a foundation for custodial arrangements that can be cooperatively adjusted as needs change over time.  Whatever a couple's differences may be, there is never a victor in a custody battle.  That perhaps is why even couples, labeled as poor candidates for mediation, often are able to produce an agreement that actually addressed their children's needs and their individual and joint roles in parenting.

Addendum: The recent hullabaloo surrounding Christie Brinkley’s and Peter Cook’s custody and child support disputes all too vividly remind us all of the very real need to settle child related issues in private with dignity.