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How to Solve a High Conflict Custody Dispute

February 14, 2012 | Comments: 0 | Views: 235

High conflict custody battles are nothing new. As long as there is divorce there will be conflict over how each individual custody arrangement will work.

All custody cases in Idaho take into account the best interest of the child. This means that the Court looks at the individual circumstances of each parent. They look at the economic and social stability of the parents and continuity that each parent can provide the child. They consider any criminal behavior including domestic violence, disability and mental illness of the parents. In addition the Court considers the living situation of the child, the child's wishes, the parents' wishes, the child's proximity to their school or neighborhood as well as considering the relationship with other children within the household. These criteria make up what is known as the best interest of the child.

In high conflict custody cases there are circumstances which detract from the best interest of the child. The Courts in Idaho have taken a new approach to deal with these high conflict custody cases. Pursuant to the Idaho Rules of Civil Procedure, Rule 16 when there is a break down in communication and the parties reach an impasse the court will appoint a parenting co-ordinator. This is a neutral individual appointed to help facilitate the establishment of a parenting agreement. These co-ordinators are not appointed automatically, rather they can be appointed by agreement or when there is high conflict. By high conflict the Idaho court means the custody issues are subject to re-litigation, the well-being of a child is at risk because of a parent's inability to parent, there is domestic violence, chemical dependency or mental illness or to protect the best interest of the child.

In a very real sense, the parenting co-ordinator is acting as a mediator between the parents in high conflict custody situations. They make recommendations based upon the individual circumstances and in some situations they make decisions as to what will be done or considered when the parties are unable to come to an agreement. In theory their role is to empower the parents to develop and utilize parenting skills so that they can actively and successfully parent their own children. Often, because of conflict, very simple arrangements can cause a dispute between the parents. Simple things like where and when to pick a child up, which day care to use, minor changes in schedule, ways of communicating about the child, registering a child for school, when to take a child to the doctor or what treatment a child may need become major stumbling blocks and effect the decisions parents make for their children. The parenting co-ordinator model is an attempt to deal with these daily co=-parenting issues.

So we can see that the theory behind Rule 16 is to provide and impartial party who will help parties in conflict come to a resolution that works for them but that still remains in the best interest of the child and keeps minor issues out of the courtroom. But does Rule 16 do anything to solve high conflict custody cases?

High conflict custody cases are high conflict for many reasons including the fact that the parents cannot get along, they do not have good communication skills or there has been domestic violence. Rule 16 is an attempt to create a bridge around these issues of conflict by placing an impartial person in the gab who has the qualifications to negotiate, mediate and otherwise help the individuals understand the negative impact of their conflict. In some cases the parenting co-ordinator is able to help the parties resolve the issues which have caused the conflict or to resign themselves to certain facts so that an agreement can be reached. In other cases, the parenting co-ordinator model simply does not work. Sometimes resentments are so deep seated or negative feelings are far too intense to allow the parties to come to any meaningful agreement. Unfortunately, sometimes the added attention creates a greater need to be vindicated and thus creates more conflict. So what happens when the model of parenting co-ordinator breaks down?

Firstly, and very importantly, the appointment of the parenting co-ordinator does not preclude the divorce attorneys from advocating on their clients' behalf. A party, through their attorney is still able to say no to a parenting agreement. The individual parties can request that the parenting co-ordinator be terminated for cause or the parties can mutually agree to terminate the parenting co-ordinator. The appointment of the parenting co-ordinator also does not take away the authority or the role of the court from determining custody based upon the best interest of the child. The real effect of the parenting co-ordinator model is to help prevent the court and the attorneys from micro-managing the day to day parenting issues. Therefore when the model breaks down the court and the attorneys return to their position of trying to manage or to get their clients to manage the daily co-parenting. Without a parenting agreement in hand, the custody case will be presented to the judge in a custody hearing. As with all hearings, evidence will be presented and testimony will be taken. The judge is then left to determine custody based upon the best interests of the child as outlined in Idaho Code 32-717, exactly how it would have been done had a parenting co-ordinator not been appointed in the first place.

Ending up in the same place as you started is exactly the criticism that is starting to pop up about appointing parenting co-ordinators. This, however, is a misplaced criticism. If it is at all possible to free up the resources of the courts and the attorneys it is worth a try. Because there can and is success with the parenting co-ordinator model, it can be an economical solution to a difficult problem.

Patrick Kershisnik is a local Boise Attorney with 18 years experience practicing family law. For more information on family law in Idaho please visit or

Source: EzineArticles
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