You and your spouse have decided to get a divorce, and, while you might be in pain from this decision, your children are likely even more hurt and confused. It is an unfortunate fact of divorce that there will be an almost certain impact on your children. Entering into respectful discussions that are focused on the wellbeing of your children demonstrates an ability of both parties to parent together and separately. It is imperative that, when dealing with child custody and visitation arrangements during your divorce proceedings, you continually advocate for what is in the best interest of your children.

If you have elected to litigate your divorce in court, you can expect extended visits with lawyers and, in some few cases, a guardian ad litem (a lawyer appointed by the Court to represent your children’s interests in the litigation) as well as a heightened stress in the family. Children are imminently perceptive, and if you choose an unpleasant divorce battle, there is not much you can do to shield your family. If you and your spouse choose a respectful, impartial family law mediation, however, you can choose to act on behalf of your children’s best interests.

Deciding what is in your child’s best interest

When you are working with your spouse and our mediators to create the best environment of custody and visitation for your children, you will want to keep some things in mind:

• Mediation can lead to more detailed custodial and visitation arrangements. To fully empower your family to heal during and after divorce proceedings, you will want a custody and visitation arrangement appropriate for your family’s needs. The courts do not know your family’s true needs and circumstances from the glimpse they obtain in a court hearing.
• Wishes, age, and sex of the child. After a certain age, your child may have input in what he or she wishes but the Courts are not bound by the child’s desires. While the wishes of your children might not always lend themselves to your exact custody and visitation arrangement, it is important to consider the child’s needs, desires and wellbeing. Additionally, certain considerations might be made due to the age and sex of any children from your marriage.
• Mental and physical health of both parents. Mediation is most successful between two healthy parties, but there are times when mental and physical ailments might affect the ability of a spouse to care for their children. If you are concerned about issues like this, bring them up to your divorce mediator and make sure your voice is heard by an impartial and neutral party.
• Children in the middle. When you are fighting over the children and other issues in the courts children may often feel an obligation to take sides or to not disappoint either parent by agreeing with each separately. The children should be kept out of the divorce fighting and the best way to do that is to work together in mediation for the children’s best interests.  When you stand together on children’s issues (even if you have different views of child rearing) the children benefit most.
• School and community. If your child is thriving in his or her current school and community, it will often be best to continue that trend, if it is possible given your circumstances. If a parent is moving away, that should be a consideration in the custody agreement.

The Courts will consider several factors:

The factors below are what is considered in the Virginia Code- which is where our office based out of. Your local laws may differ, but this is a good baseline:

• The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
• The age and physical and mental condition of each parent;
• The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
• The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
• The role that each parent has played and will play in the future, in the upbringing and care of the child;
• The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
• The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
• The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
• Any history of family abuse or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
• Such other factors as the court deems necessary and proper to the determination.

There are many other considerations in custody and visitation discussions, which you will know better than any Court can determine in a hearing lasting hours or even days. Mediation allows you to use your knowledge of your family, your children and your children’s needs in fostering a parenting plan which will be in your children’s best interest.