Given that reducing family conflict is good for children, the best way to protect them during divorce would be to minimize the acrimony of the proceedings. No-fault divorce, now practiced in every state except New York, has been one step toward this goal. But issues relating to children in divorce cases are still very often decided by long, heated contests between the parents. Custody disagreements are settled by a judge’s determination of what is in “the best interests of the child.” In practical terms, this means that both parents do their utmost to demonstrate that they are the better parent — and that the other one is worse, unfit or even abusive.This statement ignores that someone who is divorcing may be doing their utmost to demonstrate that the other spouse is abusive because the other spouse is actually abusive and is a danger to a child or children rather than being motivated by how a judge makes a custody determination. It also ignores that someone who is abusive may seek to use the family court system to continue the abuse since this behavior is different from behavior caused by the structure of the current system.
According to Stop Family Violence a significant percentage of "high conflict" custody disputes involve a spouse who has committed domestic violence.
Abusers who didn't previously direct their abuse at children have used children as pawns in their abuse against someone who has left the abuser. Parents have gone so far as to murder their own children after communicating this intent to the other parent. Dismissing reports of these types of threats as the product of "high conflict" custody disputes needlessly leaves children's lives in danger.
When those who are in abusive relationships have children with their abusers people who assist victims of domestic violence are beginning to understand that safety plans must extend beyond 30 days after getting out. Some safety plans need to extend 20 years or longer.
What children need instead are no-fault custody proceedings — which could be accomplished with two changes to state family law. First, take the money out of the picture by establishing fixed formulas for child support that ensure the children are well taken care of in both homes, regardless of the number of days they spend in each. Second, defuse tension by requiring parents to enter mediation to find a custody solution that best meets the needs of all concerned.This no-fault custody proposal sounds good on the surface because children would be better off if their parents or guardians could work out an amiable solution, but mediation doesn't make a "high-conflict" situation magically low conflict and could turn a "high-conflict" situation into a high-danger situation for children and exes during the mediation process and after the custody issues are considered resolved.
Agreements reached through mediation would need to be binding (subject to the approval of a judge), so that they could not be discarded or contested later if new disagreements were to arise. Although some parents might worry that this would diminish their opportunities for recourse, mediation would actually give them greater control over the outcome than a judge’s unilateral verdict does.
In an adversarial custody battle, no one wins, but children are the biggest losers of all. Intelligent legislation could promote the one thing that children of divorce need most: peace between their parents.
If 1 parent is abusive then tension can't be eliminated by forcing the parents into mediation. This requirement is more likely to increase tension. With an abusive parent there is no way to get an outcome which makes everyone satisfied unless the abuse is recognized and dealt with carefully. This reality must be acknowledged not ignored.
Letting spouses leave a marriage without proving fault by the other spouse is not parallel to deciding which parent gets custody or how visitation will be handled without considering certain faults.
The problem with Bettelheim's proposal is that it ignores serious dangers which can rightfully cause a good parent to become adversarial while a dangerous person could seem like the more reasonable of the divorcing parents. A parent who physically or sexually abuses children might be happy with what is considered the ideal outcome in divorces and custody disputes. This could cause a mediator to incorrectly view the person making a rightful allegation and a rightful demand for no unsupervised visitation as the problem parent.
This failure is more likely when people believe Bettelheim's default motivation for all custody disputes: money.
Mediation when one of the spouses is abusive disregards real dangers and does nothing to reduce the harm done by an abusive spouse and parent. Making what could be a dangerous solution binding increases the danger to children.
Improvements in how custody issues are handled are needed, but this proposal is not the fix for the current problems.