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Articles about Mediation and Collaborative Divorce

ARE THERE ANY SPECIAL LEGAL PROTECTIONS FOR THE PRIMARY PARENT DURING A DIVORCE?

Posted by Patrick Ward | Jan 18, 2023 | 0 Comments

This question often comes up with many divorcing families in mediation in one form or another. Legally, Oregon recognizes "the value of close contact with both parents and encourages, when practicable, joint responsibility for the welfare of such children and extensive contact between the minor children of the divided marriage and the parties." ORS 107.105(1)(b). Absent special circumstances, the law creates a preference for ongoing and appropriate contact with both parents. However, this preference does not necessarily mean that the children should divide their time equally between their parents. 50/50 should not necessarily be the default. Decisions should be made on the children's individual needs, considering the difficulties they are experiencing during the divorce and the practical circumstances that may limit parenting flexibility. Parents should also focus on maintaining consistency for the children as much as possible as the divorce proceeds.

Like the parents, children will experience various emotions during the divorce. The children's lives will change in many ways that may be completely unexpected. Protecting the children's feelings does not necessarily mean that the primary parent or the parent who provided the majority of the parenting should necessarily be the primary parent after the divorce.

In many, if not most, marriages, each parent takes on a role and obligations. Often, these roles develop naturally. Divorce will modify those roles – sometimes drastically. Sometimes, the stay-at-home parent has to re-enter the workforce and figure out child-care needs for the first time. The other parent may need to learn parenting skills they previously did not need. Children are also experiencing new and different experiences. There are layers of emotional and practical complexity for each family member.

When parents are initially separating, the parent's decisions about their children and the children's needs should be child-centered – which may mean changing the language the parents use. Making the language child-centered may help keep the focus on the children, hopefully minimizing the conflict in front of the children. For example, I try to remind parents that they are not making a parenting plan but that they are making a parenting plan for their child. If their child's name is Sam, whether I'm meditating in person or online, I will write down the parenting plan and title the document "Sam's Parenting Plan." And I will remind the parents that Sam now has two homes. Their home with parent one and their home with parent two.

I stress to my clients that ongoing conflict between parents is the greatest threat to their children, as high conflict creates the most significant risk of harm. I also offer parents many resources to help them meet their children's needs, including Child Specialists, podcasts, and books and resources.

Almost universally, each parent is doing their best to balance their needs with the needs of their children. Unfortunately, for many families, practical circumstances drive how much time the child may spend with one parent or the other. For example, if the mother is a police officer with a regimented schedule, her flexibility may be limited.

Even though the law places a preference on ongoing contact with both parents, the parents can and should focus on their children's needs when mediating parenting plans and obligations. This should not necessarily mean that the child spends equal time with each parent or more time with the primary parent. Each child and their needs should be considered individually to the extent allowed by the family's circumstances.

(Special thanks to the marvelous Christina McGhee for many of the tips and resources in this article. Her book Parenting Apart:  How Separated and Divorced Parents Can Raise Happy and Secure Kids is a fantastic resource for families. And please also enjoy her appearance on Susan Guthrie's fabulous podcast, Divorce and Beyond, https://divorceandbeyondpod.com/divorce-and-children.)

About the Author

Patrick Ward

Patrick Ward is a Mediator and Collaborative Divorce Attorney who is committed to emotionally healthy and child-centered solutions to family conflict, such as divorce or custody disputes. He is a flexible, creative, and committed resource for clients.

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