The swiftness with which Katie Holmes and Tom Cruise reached an agreement regarding the custody of their daughter has led many people to wonder about how it could happen so quickly and with such apparent ease. The reality is that most custody cases are resolved by agreement of the parents, as Tom and Katie's was. A study conducted by divrocepeers.com showed that 51 percent of custody arrangements are developed through consensus of parents. That study also indicated that only 4 percent of custody cases proceed to trial, with only 1.5 percent completing a full trial.
After practicing family law for nearly 25 years, I have found that, among my clients who are able to resolve custody swiftly and without a trial, five core tenants are usually present.
1) Serving the best interest of the children is paramount. These parents are willing, and often do, put what is best for their children above their own desires.
2) The parents respect and appreciate the significance and importance of the other parent in the children's lives. These parents do not contend that individually they can effectively take on the role of both mother and father. Nor do they think their co-parent can be easily replaced by a surrogate; stepparent, friend, relative.
3) They are invariably realistic and practical in their outcome expectations. These parents know that they must evenhandedly allocate parenting time with the children. Division of the family always results in division of time with the children. This premise also holds true for decision making.
4) These parents embody a spirit of cooperativeness. They are able to work together cooperatively to achieve an equitable, logistically practical and financially prudent agreement which ultimately serves the best interest of their children.
Assuming that these characteristics are present, how then can parents resolve their custody disputes quickly and amicably? Here are some things to consider:
1) Find general consensus as to what is in the child's best interest. Focus negotiations exclusively on serving those interests. The needs of the child are not inextricably intertwined with the desires of the parent. Often in child custody matters, the two are in direct dichotomy. The needs of the child must take precedence over the desires of the parent.
2) Be reasonable. The fastest way to thwart settlement negotiations and cause adverse feelings between parents is to unrelentingly hold onto unrealistic goals. Ask yourself a couple of questions. Are your demands reasonable and fair given the totality of circumstances? If your soon to be ex offered up the same scenario, what would your response be?
3) Attempting to renegotiate long-standing parenting agreements will invariably muddy the negotiation waters and jeopardize any chance of settlement. To a great extent, all couples have informally negotiated and agreed upon certain parenting issues -- observance of holidays, the children's schooling and extra-curricular activities. Making demands that are in opposition to such agreements will not fly in negotiations. Step back and consider what would have occurred if the family had remained intact.
4) Negotiate focusing on significant issues; do not waste time and effort arguing over the insignificant. Often with child custody negotiations and agreements, the devil is in the details. As children grow older, their needs change; incorporate some growth room into the agreement. The midweek transition parenting plan that worked well for a preschooler may conflict with the extracurricular schedule of a 7th grader.
5) Keep the focus on children. The purpose of child custody agreements is to develop a plan that will ensure that the needs of the child are met. Custody negotiations, and ultimately agreements, are not a healing mechanism or vehicle for revenge for the parents. There are more appropriate forums and venues to deal with the emotional impact and stress of separation and divorce.