Utah Divorce Code 30-3-10.9
30-3-10.9. Parenting plan–Objectives–Required provisions–Dispute resolution
Dispute Resolution Options in Parenting Plans
Introduction: All parents going through dissolution learn that the parenting plan required by the Washington State Parenting Act must specify a dispute resolution method as a part of the plan. The dispute resolution section always appears in Part III of the plan, as mandated by the parenting plan form. Note that this section applies only to disputes under the parenting plan, and not disputes about matters such as child support or tax exemption allocation.
Court Action: Parents always have the right to say that the only dispute resolution mechanism that they want is the use of the court system to adjudicate their differences. One typical reason for this is that one party cannot afford the cost of alternative dispute resolution. In theory, a party representing him or herself may obtain access to the courts free by filing a motion on the Family Law Motions Calendar (or nearly free, allowing for the costs of service and copying). An arbitrator or mediator, in contrast, frequently charges for his or her services at rates of upwards of $100 per hour, with the costs to be divided between the parties in some fashion. As a practical matter, however, in the event of a serious dispute, a party may be reluctant to take court action without counsel. Also, legal fees borne by a party in post-decree matters can mount much more rapidly than the shared cost of an arbitrator or mediator. So a parenting plan which provides for court action only does, in the event of a serious dispute, leave a party with the alternatives of putting up with a bad situation, plunging into court alone, or spending money on attorney’s fees.
Mediation: In mediation, a neutral third party assists the parents in reaching a voluntary and informed settlement of their parenting differences. Ideally, the parties identify the areas of agreement and disagreement, express his or her own needs, and consider options that meet those needs. The mediator facilitates a fair process and may have no ability, depending on his or her knowledge of family law, to evaluate whether a fair result has been reached.
Here are some issues that should be considered by parties considering mediation:
• Solutions that parents are able to derive jointly and cooperatively are frequently more satisfying than decisions imposed by an outsider such as a judge.
• This method of dispute resolution is widely considered to be totally inappropriate for survivors of domestic violence. Many observers also believe that is not the best method when there is a significant power imbalance between the parents, even absent acknowledged domestic violence.
• Many parents who have used mediation believe that it is expensive, time-consuming, and frequently unsuccessful, especially in complex cases.
• The background, training, and experience of mediators can vary widely.
Arbitration: Only about one percent of parenting plans designate arbitration as the dispute resolution mechanism, and this method is not widely understood. Like mediation, arbitration uses a neutral third party outside the court system. Unlike mediation, however, the arbitrator makes the decision for the parties rather than simply facilitating the parties’ process of decision.
Here are some issues to be considered by parties considering arbitration:
• The parties still have the right to go to court in the face of an unsatisfactory decision unless they have agreed that the arbitration is to be binding. However, how an experienced arbitrator views a party’s position is frequently a good indication of how the court commissioner or judge will view that party’s position, so the review to review of the decision is not always exercised.
• Arbitration can be considerably faster than mediation in resolving a dispute
• Because of its speed, using arbitration can be less costly than extended mediation or a trip into court with an attorney.
• Arbitration can be very useful in deciding a limited point of contention between parties in general agreement.
It is also possible to mediate to a general agreement, and then agree to arbitrate the remaining points. When formulating your parenting plan, do not overlook the selection of the method you will use in the future to resolve disputes with your children’s other parent. It is worth some time to make sure you understand the differences between the methods in order to decide which the best for your own situation is.
Conflict and dispute-resolution mechanisms for parents
The Children’s Act states that in any matter concerning a child, an approach that is conducive to conciliation and problem-solving should be followed, a confrontational approach should be avoided, and a delay in any action or decision to be taken must be avoided as far as possible. Parenting plans should be amicable accords between parties that will assist the separating family unit in the long term. Parents must work together to reach a joint agreement, rather than remain in conflict with each other. High conflict situations will have a negative effect on the family’s functioning, leading to dysfunction. The parenting plan usually contains a dispute-resolution clause whereby a facilitator can be appointed. This is a somewhat controversial concept. The facilitator is normally appointed with the agreement of both parties and is usually a qualified clinical psychologist specializing in dispute resolution in broken homes.
The facilitator has the power to:
• facilitate joint decisions in respect of the children;
• regulate, facilitate and review the contact arrangements in respect of the child;
• make recommendations on any issue concerning the welfare and/or affecting the best interests of the child;
• issue directives binding the parties on any issue concerning the welfare and/or affecting their best interests of the child (subject to a court of competent jurisdiction holding that such directive is not in the child’s best interests);
• resolve conflicts relating to the clarification, implementation and adaptation of the parenting plan;
• require the parties and/or the child to participate in psychological evaluations or assessments;
• engage the services of an expert professional to assist him/her to issue directives that have a bearing on the child; and
• co-opt the services of a co-facilitator when reasonably necessary.
In so far as a facilitator has the power to make decisions in respect of a minor child, the power must be exercised in the best interests of the child and will be binding on the parties, unless the High Court, as upper guardian of children, orders otherwise. A facilitator’s services involve elements of mediation, expert opinion and counseling, but do not purely fall into any of these categories.
The facilitator is not appointed as a psychotherapist, counselor or attorney for the child or the parents. No therapist/patient or attorney/client relationship is created or otherwise exists between the facilitator and any of the parties involved. The facilitator’s fees are normally shared between the parties. The facilitator will follow a procedure to resolve disputes and/or may issue directives when the parties are unable to reach agreement on any issue where a joint decision is required or where the child’s welfare has become contentious. If such a dispute arises, it must be referred in writing to the facilitator who will attempt to resolve the dispute as speedily as possible and without recourse to litigation. If the facilitator is unable to resolve a dispute by way of mediation, he/she may resolve the dispute by issuing a directive, which will be binding on the parties subject to the provisions therein. Both parents, and the child if necessary, will participate in the dispute-resolution process as requested by the facilitator. The facilitator will conduct informal proceedings, and is entitled to receive information via telephone, correspondence, email, etc. The facilitator will use his/her discretion in considering the weight and sufficiency of information provided, and may expand the enquiry as he/she deems necessary. The facilitator will determine the protocol of all communications, interviews and sessions, including who must attend meetings, but parties will be permitted to consult their legal representatives, either in person or by telephone, during such meetings. The parties and their attorneys will have the right to initiate or receive oral communication from the facilitator. Any party or counselor may communicate in writing with the facilitator provided that copies are given to the other party and, if applicable, their legal representatives. The facilitator may confer individually with the parties and with others, including but not limited to step-parents, step-siblings, extended family members and friends, permanent life partners, household members, school and educational personnel, care providers and healthcare providers for the child and therapists for the child and the parents. The parties must authorize such persons to provide information to the facilitator.
Mediation and Parenting Plans
How Mediation can be used to help draw up a Parenting Plan
Mediation is a non-court dispute resolution process for couples who are experiencing a relationship breakdown. The aim of mediation is to facilitate open, face-to-face discussions about future arrangements for the children and other matters that may be affected by the separation. It is often very beneficial to couples who are finding it difficult to communicate and focus on what is best for the children. In mediation the emphasis is very much on the future and not the past. Mediation can be used to work out arrangements for children and their schedules in addition to any other practical decisions that need to be considered and addressed.
How does mediation work?
Mediation is a voluntary and confidential process. The confidential nature of mediation enables parents to discuss their concerns and ideas openly in the knowledge that the discussion cannot be referred to outside of the mediation forum. Mediation involves an independent, qualified mediator, often a family lawyer, assisting parents to reach a mutual agreement. During the mediation sessions the mediator guides the parents through their discussions assisting them to talk about what they might like to happen and ensuring that they listen to each other with courtesy and respect ensuring that their children are always considered first. Following those discussions it is hoped that the mediator can assist the parents to move towards an agreement. Throughout the process the mediator remains impartial but supportive, their role is to open up and facilitate discussion with the aim of reaching agreement.
What is a Parenting Plan?
A Parenting Plan is a written plan drawn up by parents after they separate. It can be used to decide all practical decisions in respect of children including their schedules, living arrangements, education and health care. The purpose of using a written parenting plan is to record the arrangements that the parents have decided to put in place for their children after separation. A parenting plan can also be structured to include plans for holidays and special occasions.
Mediation and Parenting Plans
Making decisions and agreeing arrangements regarding children can be challenging for separated parents. Mediation assists parents to work together through constructive communication to develop a parenting plan that has been decided upon and agreed by both parents. During the mediation sessions a trained mediator will guide the parents through discussion assisting them to explain what each would like to happen, the mediator then assists the parents to move towards an agreement. Although children do not directly participate, their needs are regarded as paramount in the mediation process. Mediation helps parents to focus on making a plan that is in the best interests of their children, that is practical and considers situations and eventualities their parents might not have otherwise thought about. Drawing up a parenting plan in the mediation process can aid communication between parents and reduce areas of potential future conflict. In mediation parents are encouraged to work together in a constructive manner, thereby reducing conflict and resulting in a more positive outcome for parents and children.
Benefits of using mediation to draw up a parenting plan
There are numerous benefits of using mediation to draw up a parenting plan, not least because mediation is quicker, less stressful and much less expensive than other processes. In mediation parents have the control to decide the arrangements for their children, as opposed to decisions being imposed upon them. Within the court process the control is ultimately given to the Court. Mediation very often improves communication between parents, resulting in solutions being reached quicker. Overall, mediation is a constructive way of parents agreeing arrangements in respect of their children.
The Best Ways to Solve Disagreements about Parenting Plans
After divorce or separation, disagreements about parenting plans can reopen old wounds. Conflict over parenting time exchanges and other parenting decisions can cause anxiety for parents and children alike. You can help you kids by learning healthy habits to solve disagreements with your co-parent and minimize the stress at home.
Put the Child’s Interests First
When you are facing a parenting time disagreement, ask yourself: “What would be best for my kids?” Is your position on the issue a matter of convenience for you, or is it based on what your children need to be healthy and happy? It can be easy for parents to focus on their own needs and wants. If you and your co-parent both put your child’s interests first, it will be easier to find common ground and a resolution to your disagreement. This doesn’t mean your children get final say. Instead, it means you should look at the problem from their perspective and apply what you know as a parent.
Create a Concrete Plan
All too often, parenting plans are vague, granting one parent “reasonable” parenting time “as the parties agree”. When disagreements about parenting plans arise, these orders aren’t helpful. You and your co-parent need a concrete plan that guides you’re scheduling, and your decision-making. Sit down with your co-parent before disputes arise (or in calm between the storms). Agree to put your kids first, and work out a concrete plan for:
• How will you make decisions together or who will be the go-to parent for different types of decisions (medical, school, extracurricular activities)
• What information each parent will make available and how
• What a normal week’s (or two-week period’s) parenting schedule will look like
• How you will handle holidays, school breaks, and vacations
Be specific, down to the times and places parenting exchanges will happen. You can always agree to make exceptions when someone is sick or a family reunion happens on the off weekend. By having a concrete plan in place ahead of time, you will reduce disagreements and give your children certainty, so they know what to expect day-to-day.
Remove Emotion from Your Discussions
There is a reason (or maybe many reasons) why you are no longer with your co-parent. Some of these likely have a lot of emotion connected to them. When disagreements about parenting plans arise, they can stir up all those old emotions and make it hard to make rational decisions. Do what you can to remove emotion from your parenting discussions and treat your co-parent more like a business partner. It may help to:
• Make all communication in writing (text or email) so you can compose your thoughts
• Set up a shared calendar where all the children’s appointments, practices, and events are listed
• Give yourself a cooling-off period before responding to an upsetting issue
• Communicate directly with your co-parent rather than involving your children
If you have trouble separating your emotion from your parenting discussions, you may want to work with a family specialist, therapist or counselor to develop strategies to minimize the emotional impact of your communications with your co-parent.
Utah Divorce Attorney
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