Three years have passed since the words “child custody” have been spoken in an Arizona courtroom. They have not been missed.
Those who support the “best interests of children” recently celebrated the momentous anniversary that the term “custody” was deleted throughout Arizona’s family law statutes. It was more appropriately replaced with the phrase: legal decision-making authority.
Arizona is one of a handful of states that now distinguishes between the terminologies used for incarcerating prisoners, and parental authority over children. Most of America has not so progressively evolved.
Divorcing parents and family law attorneys are still adjusting to the less adversarial language. Arizona family law has also evolved to advance the better interests of children.
Parents’ equal rights and responsibility for their children have become the new norm. One parent with superior decision-making rights, and “every-other-weekend-visitation” have become a rarity in the Wild West.
Arizona courts have interpreted joint legal decision-making and equal 50-50 parenting time as their default orders based on recent law and precedent. And yet, devastating divorce wars over parenting issues continue to rage on in our courtrooms.
Unfortunately, Arizona’s transition to more child-centered language and law hasn’t reduced the lines of parents at our courthouses battling over their children. Children are innocent bystanders who emerge with the deepest battle scars.
Even after explosive divorce litigation in Arizona, judge-ordered outcomes of joint legal decision-making and equal parenting time are still most common. However, the effects of litigation leave families in tatters. Parents are turned into enemies. Families are often left financially devastated. Children suffer long-term psychological damage.
While the “best interests of children” (A.R.S. §25-403) are sometimes fiercely litigated for years, children’s greatest interests are almost always served when parents stop fighting.
Wallerstein and Kelly’s ground breaking research in the 1980’s (and scores of research since) show that parents’ failure to stop fighting and end their high conflict relationship is the central cause of children’s poor adjustment five years after divorce.
Conflict prevents children from accepting and processing the divorce. It often results in parents bad-mouthing one another to their children. This can cause serious long-term emotional issues. Litigation can destroy any chance of healthy co-parenting.
Dr. Robert Emery (2001) found that parents who use divorce mediation have substantially better relationships with their children than parents who litigate in court. For example, approximately 54% of children from mediated divorces had weekly phone contact with their non-primary residential parent twelve years later, compared to only 14% of children from litigated court divorces.
Why then, should divorcing parents engage in an adversarial litigation process in the first place?
It is unnecessary and in fact, unwise, for the vast majority of divorces to play out in litigation when spouses have a smarter, healthier choice in divorce mediation.
Arizona divorce law—particularly as it pertains to children—has created an environment most ideal for mediation success and satisfaction. As equal parenting time and joint legal decision making are almost a given (aside from certain specific activities that rebut the presumption), parents can work from that place in order to personalize and custom tailor their specific agreements to fit their schedules, and their children’s needs. This freedom reduces conflict moving forward by giving parents what they actually want—control over their own lives and their children’s future.
In divorce mediation, parents never enter a courtroom. A neutral mediator helps them peacefully reach agreements on a comprehensive “parenting plan” and full settlement to divide finances and determine support issues. Parents—no matter how challenging it may be to communicate with one another—can choose to protect their children by going to the mediation table rather than a courthouse to settle their divorce.
Parents should also know that divorce mediation in Arizona is confidential, at least 80-90% less expensive than typical litigation legal fees, and concludes in a matter of only 2-4 months on average, compared to a lengthy court experience that can last a year or more. Most importantly, the process keeps spouses in control of their own divorce terms. The advantages of mediation are present at every juncture of the divorce process.
Today, Arizona courts are encouraging spouses to avoid a court-battle and opt for mediation. Maricopa County’s form “summons” directs parents to choose mediation in order to “settle disputes concern legal decision making and parenting time issues regarding minor children.”
Family law in Arizona is progressing. Divorcing parents have the opportunity to choose a divorce path congruent with what is actually best for families. The anniversary of Arizona’s recently enacted parenting laws reminds us that we have a responsibility to reduce divorce related conflict for the sake of children.
Divorce doesn’t have to be a war that everyone loses. Parents can be heroes to their children by refusing to engage in a battle, and instead, come to the mediation table for a challenging, but respectful divorce process to accomplish far better outcomes for their family. Regardless of the law, that’s progress.
This article will soon appear in the ABA ADR Section Dispute Resolution Magazine. Persons interested in subscribing to Dispute Resolution Magazine should contact the ABA Section of Dispute Resolution at...By David Hoffman, Natasha A. Affolder