I hear a version of the same comment regularly from couples who contact me about mediation:
“We want to mediate because we do not want attorneys involved.”
As an attorney myself, that statement always gets my attention.
Usually, what they mean is not that attorneys have nothing valuable to offer. They are worried that bringing attorneys into the process will make things more adversarial, more complicated, and more expensive. They have heard the nightmare stories from friends and family—divorces that dragged on for years, legal fees that spiraled, and disagreements that became battles once the lawyers became involved. They do not want a disagreement they believe they can work through together to turn into a legal fight.
And sometimes, unfortunately, that fear is justified.
Attorneys are trained to identify risk. We anticipate what might go wrong and try to protect our clients from it. That is an important part of our job. But in family law, there is a danger in treating every future possibility as something that must be prevented.
Sometimes, in our effort to protect clients from future conflict, we create rigidity that can actually make future conflict more likely.
A Parenting Plan Cannot Predict a Child’s Entire Childhood
A recent change to Utah’s custody statutes provides a good example.
For parenting plans involving young children, Utah law now recognizes that a child turning five may constitute a substantial change in circumstances warranting a review of parent-time, unless the parenting plan or order provides otherwise.
I have already heard attorneys approach this change from the perspective of:
“We need to put language in the agreement so the other parent cannot come back when the child turns five.”
My question is: Why?
Why is returning to the parenting plan when a child turns five necessarily a bad thing?
Certainly, there are families where repeated litigation is a serious concern. If parents have a history of high conflict, coercive behavior, repeated litigation, or an inability to make decisions together, creating greater certainty may be appropriate.
But that is not every family.
For many parents, revisiting a parenting plan as their child grows may be entirely reasonable.
A parenting schedule that works beautifully for a two-year-old may not be the best schedule for a five-year-old starting kindergarten. And what works for a five-year-old may need adjustment when that child is ten, fourteen, or sixteen.
Children change.
Their school schedules change. Their activities change. Their friendships become more important. Their developmental needs change. Parents’ work schedules and living circumstances may change too.
When parents divorce while their children are young, we are asking them to make decisions today about children they have not met yet—the future versions of their children.
No parent knows exactly what a three-year-old will need when that child is thirteen.
So why should every parenting plan be designed as though the goal is to make future conversations as difficult as possible?
There Is a Difference Between Stability and Rigidity
Children need stability. Parents also need predictability.
But stability does not necessarily require rigidity.
A well-designed parenting plan can provide a dependable structure while also recognizing that families evolve. Rather than trying to prevent parents from revisiting their agreement, we can help them develop a process for doing so constructively.
For example, parents can agree to periodically review their parenting plan as their children reach important developmental stages. They can identify circumstances that should prompt a conversation. They can agree to consult with a child-development professional, parenting-plan specialist, mediator, or other neutral professional before anyone considers going to court.
Most importantly, they can be educated about the difference between reviewing an agreement and fighting over an agreement.
Those are not the same thing.
What If We Designed Parenting Plans for Healthy Change?
Instead of asking:
“How do we prevent the other parent from ever trying to change this?”
Perhaps we should also ask:
“How can these parents address change without turning it into a legal battle?”
That is a very different question.
It shifts the focus from protecting a client against the other parent to helping both parents build a framework for solving future problems.
A parenting plan might say, in substance:
As the children grow and their developmental, educational, social, or extracurricular needs change, the parents recognize that the parenting schedule may need to evolve. The parents will periodically review the schedule and discuss whether modifications would better serve the children’s needs.
The agreement could then provide a dispute-resolution process if the parents cannot agree—perhaps consultation with a neutral professional followed by mediation before either parent seeks court intervention, where legally appropriate.
That does not eliminate disagreement. Nothing can.
What it does is give parents a roadmap for disagreement.
Attorneys Can Help Families Build Problem-Solving Skills
I believe one of the most valuable things a family law attorney can do is help clients understand that not every future risk needs to be eliminated.
Some risks should be managed by creating good processes rather than erecting legal barriers.
When we draft an agreement solely around the question, “How do I protect my client if the other parent becomes unreasonable?” we may inadvertently create an agreement designed around fear.
But what if these parents are reasonable?
What if they become more cooperative after the divorce is over and the emotional intensity of the separation has passed?
What if their child simply needs something different five years from now?
For many families, the better question may be:
“How do we create enough structure to provide stability while preserving enough flexibility to respond to the children we actually have—not the children we are trying to predict today?”
That is one reason I believe mediation and collaborative divorce can be so valuable. The goal is not simply to resolve today’s legal issues. It is to help families develop agreements and problem-solving processes that can continue working long after the professionals are gone.
Perhaps the measure of a good parenting plan should not be whether it prevents parents from ever coming back to the table.
Perhaps it should be whether, when life inevitably changes, they know how to come back to the table without going to war.
With deep care,
Diana
Photo Credit: A storm approaching, captured by my dear friend Carolyn Storey