Mediation

The Best Interests of the Child

Recently, the Huffington Post featured an editorial posing the question, “Child Custody:  In Whose Best Interest?”  The title of this article is referencing the guideline judges use to make decisions in cases involving children.  The best interests of the child, along with statutory requirements, are certainly the central concern in Iowa cases  involving children such as CINA (Child(ren) in Need of Assistance) cases and child custody cases.  The factors taken into consideration when deciding what is in the best interest of children are explained in several different Iowa Code Sections such as:  Child Custody and Termination of Parental Rights.

The Problem of Voiceless Children in Today’s Child Custody Plans

In her article, Dr. Ruth Bettelheim, Ph.D., points out the ways in which our current child custody plans and our current court system fail to take a child’s best interest into full consideration.  Dr. Bettelheim argues that our current system actually caters more to parents than children.  She points out that children’s needs change as they grow older, however, at this point, their schedules are dictated by the needs and conveniences of their parents.  Unless the custody plan is changed at some point, which can be a difficult and costly process for parents, it will remain the same until the child reaches the age of 18.

Because children are not routinely or officially put in charge of deciding where they would like to live and how much time they would like to spend at each parent’s residence, many children feel as if they have no power over their own lives.  Dr. Bettelheim believes that we should be concerned about this because it takes away children’s voices and creates burdens on their relationships not only with their parents but also their friendships that are so important as they grow.  She believes this can be detrimental to children and may also lead to provocative or damaging behavior by the child.

Some may be surprised to learn that, generally, children have reached the “age of reason” (according to most in the judicial system) by age 7.  Although we recognize this young age as a time when a child is able to make reasoned decisions about their lives, it is not reflected in how we create and maintain child custody plans in our courts.

Increased Reviews of Child Custody Plans as a Solution to Powerless Children

Dr. Bettelheim believes that there should be a mandatory, regular review of all child custody plans as children grow older.  She also believes that children should be given much more power in deciding their own fates when it comes to where they live and who they live with.  She believes there should be a formal outlet for them to voice their wishes concerning their custody.  Dr. Bettelheim does qualify this suggestion by stating that the child’s decisions need to be taken into account along with how they are performing in school, how they are functioning at home, and what their inter-personal relationships are like.

Consequences of Increased Reviews of Child Custody Plans

Dr. Bettelheim’s plan would certainly increase children’s decision-making power, but it would also cause confusion and inconsistency in child custody plans.  It raises questions as to what happens when siblings within the same family wish to have very different living arrangements, or what if a child is functioning well in school, but not at home?  Do they have the same ability to make decisions as a child who is falling short at school?  Having more and regular reviews of child custody plans would also cause more delay and backup in an already overloaded court system.  Is having more court hearing s even logistically possible?

Use of Mediation in Child Custody Plan Reviews

One possible solution to this problem of ignoring children’s decision-making power may be to utilize mediation services more regularly.  Participation in mediation would allow children a voice in their futures as well as provide a much less confrontational and much less intimidating environment to express their wishes than a courtroom.  Mediation would also allow many of these reviews of custody plans to stay out of the court system.  Use of alternative dispute resolution services, especially mediation, would also be much less costly for families than having several court hearings to decide custody arrangements.

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