It is universally recognized that litigating legal decision making, parenting time or other parenting issues can be harmful to the development of children. Litigation involving minor children, especially high conflict and protracted litigation, can result in ongoing emotional turmoil, depression, lower levels of self-esteem and a higher risk of mental illness, substance abuse, educational difficulties or failure and parental alienation. The emotional and financial toll of litigation is often also detrimental to parents in a variety of respects, including their ability to effectively co-parent (more on that below).
Having said that, in some cases, due to the issues involved or the level of animosity, litigation cannot be avoided. Where parental fitness, domestic violence or child abuse are central issues, a judicial determination may be necessary and unavoidable. The following remarks acknowledge that some parenting disputes must be resolved by the court due to the seriousness of the factual issues. Many other disputes, however, possibly the majority of parenting disputes, do not fall into this category.
For these cases, litigation is not productive and even counterproductive. The court and the assigned judicial officer cannot change the behavior of either parent, cure dysfunctional relationships or change one parent’s perception of the other. There are more constructive tools that can be used to remedy parenting disputes:
- Triaging Parental Communication: Parents should consider working on their communication skills. The Arizona Chapter of the Association of Family and Conciliation Courts (AFCC) published a “Co-Parenting Communication Guide” that is a must read for all co-parents. This guide addresses “tools, tips and good practices” for parents to follow, including how to draft appropriate e-mail communication and how to focus on healthy and “future forward” communication;
- Counseling: If resources such as the Co-Parenting Communication Guide are not sufficient, parents should consider whether professional therapeutic assistance would be a benefit. Behavioral health professionals offer both co-parenting counseling or family counseling options. Family counseling can provide broad, therapeutic attention to all family members involved in the dispute and may be particularly helpful when older children or blended families are involved; and
- Mediation: While mediation has its limitations, it is a non-adversarial and a non-confrontational setting. Because it is entirely confidential (in Arizona, see A.R.S. 12-2238), each parent can speak candidly without the worry that the thoughts or concerns will be used as evidence against them by the other parent or their attorney. With the assistance of a mediator who is well-versed in family law/parenting issues, mediation can lead to a healthy exchange of ideas, brainstorming and suggestions for resolving the dispute. Many states, including Arizona, offer mediation through court staff. However, court-sponsored mediation is often not as effective because the time is limited and attorneys are not permitted to attend. For parenting disputes involving multiple issues, private mediation allows for more time and an enhanced ability to discuss and negotiate a mutually acceptable resolution.
Again, communication education, co-parenting counseling or mediation may not be sufficient or appropriate to resolve certain parenting disputes. However, those options are not only less costly than litigation but utilizing one or more of those options may establish a more positive tone for future co-parenting. Parents who are able to resolve parenting disputes and reach agreement without litigation are more likely to be satisfied with the parenting arrangements, be more flexible with the other parent and their child/children’s evolving needs and be more involved with their children. This is the primary reason non-litigation tools should be considered by every parent (and attorney) before launching into a court action.