BEST INTEREST OF THE CHILDREN: A Guide for Divorce Mediation

By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

Setting up ground rules to resolve issues help couples keep their eyes on the big picture rather than on mini “victories.” That’s one of the reasons that a mediated divorce, on average, feels and works better than a litigated divorce. Ground rules may include ideas such as “respecting the positive contributions each party made to the marriage,” “eliminating or minimizing blaming,” or “making decisions that are in the best interests of the children.”

We’ve all heard the phrase, but how do you define the best interests of the children? In a legal sense, the doctrine is even more complex since California law also recognizes parental rights and entitlements that have to be factored into decisions about custody, visitation, and the ability of custodial parents to change residency. While the courts use a “best interests test” in deciding many, but not all custody matters, the question remains: what are the standards for the best interests of children? California law requires courts to consider, among other things, (1) the health, safety, and welfare of each child; (2) any history of child abuse; (3) the nature and amount of contact with both parents; and (4) drug or alcohol abuse by either parent.

In a mediated divorce, couples are not limited by these legal definitions. Parents can look at the relationship with their children from a “best interests” point of view. A standard of best interests can include legal considerations, but also ethical considerations (what’s the “right” thing to do for the children?), and more importantly, parents can add the knowledge from research in developmental psychology about what’s best for a child. The most recent research finds children benefit most in environments that provide stability and security. Divorce shakes up both. But agreements that look to provide the strengthening of the child’s relationship with both parents (assuming there is no abuse), the ability to communicate about the children with mutual respect (even when parenting ideas are far apart), allowing for flexibility in the care of children, and providing a voice for the children, have the best chance of keeping children on target for normal development. In mediation, parents can discuss their ideas and reach a mutually agreed-upon standard – a task that, itself, leads to decisions that are, truly, in the best interests of the children.

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