Mediate PDX | Family Mediation

​I have always been reluctant to post a ‘FAQ’ section to my website.  While it can be useful, it seems impersonal – as if the question that you have deserves a cookie-cutter answer rather than a specific, thoughtful response.  Given the choice, I’d rather answer your question like it is the first time I’ve discussed the topic with a client, rather than like it’s the 400th.  That way, I can be sure I get you the answer you’re after and don’t resort to cliché or an answer that doesn’t really address the reason you asked the question.
 
WITH THAT SAID…
 
One of the most common misconceptions, and therefore one of the most frequently asked questions when it comes to the reality of co-parenting is the question of custody - and in particular, when it comes to the difference between custody and parenting time.
 
Many people, understandably, think of custody as possession.  I have the kids today, so I have possession of them so I have custody of them.  It’s a logical way of thinking about it, but it is also incorrect.
 
Custody is the legal decision-making authority for the child or children.  That means that decisions related to education, non-emergency medical issues, religious upbringing and official residence fall under the purview of the parent with custody.
 
Parenting time is the amount of time each parent spends with the child or children. 
 
It is theoretically possible for one parent to have full custody and zero parenting time, and for the other parent to have 100% of the parenting time but not have custody. 
 
In reality, it doesn’t happen that way, but it is theoretically possible – the two concepts are that distinct from one another.
 
 
Custody:
There are three options for custody in the normal course of things.  Either one parent has custody, or the other parent has custody, or they share joint custody. 
 
Courts cannot order joint custody – it has to be something the two parents agree on together.  If they agree, it can go in a court order, but if they do not agree to share joint custody (decision-making authority) then custody will go to one parent or the other. 
 
The logic here is that joint custody means working together to agree on educational, medical, religious and residential issues…and if the parents cannot agree in advance that they will work together to make those decisions, they are unlikely to be able to actually agree on the topics themselves. 
 
Parenting time:
Unlike custody, which has only 3 options, parenting time can be organized in a nearly infinite number of ways.  While there are considerations that go into making a parenting time schedule that include the best interests of the child, the developmental level of the child and the schedule of the parents, there are few systemic constraints on what can and what cannot be worked into a parenting plan.
 
If you’re looking for a unique way of structuring parenting time, a skilled mediator can work with you to figure out what is good for the kid or kids, as well as what meets your needs.
 
I should mention here that child support calculations are impacted by the parenting plan (not custody), but in the same moment, I’ll mention that I often ask parents to figure out the parenting plan first, regardless of the financial impact, because it allows them to focus on the best interests of their children. 
 
I should also mention that parenting plans are necessarily complex.  There are a lot of questions to ask and answer.  Take Thanksgiving, for example.  Many parents agree to alternate Thanksgiving with the kids.  Seems like a reasonable solution, right? 
 
Some questions to answer about the Thanksgiving parenting time:

• Does this include all of the school Thanksgiving break, or just the day itself?
• What time does the parent who has Thanksgiving get the kid? 
• The night before?
• The morning of?
• What time?
• Who drives?
• What time does the visit end?
• The day after?
• The night of?
• What time?
• Who drives?
• If you’re alternating years, who gets the kid or kids this year?
• What if one parent wants to travel for Thanksgiving?
• Is makeup time appropriate?
• …?

There are a number of things to figure out.  Courts are rightly reluctant to have parties agree to agree to something later.  In other words, saying “we communicate well, we’ll figure it out later” often leads to more litigation, not less.  If you’re communicating well now, it might be worth it to strike while the iron is hot, and communicate in detail about what Thanksgiving looks like. 
 
This doesn’t mean, by the way, that you are stuck with whatever you come up with.  There are no parenting plan police.  If you mutually agree to do something different, you absolutely may.  We drill into this level of detail so that if and when you can’t agree on something else, you have a complete plan to fall back on.
 
 

Communication is difficult.  It is made even more difficult when the two people communicating are in a dispute.  Then, it is still MORE difficult when the communication involves discussions that aren’t face-to-face. Universally recognized body-language and tone are lost when parties communicate with each other via email or text.  This difficulty is magnified significantly when one party or the other isn’t a good writer, or when there is a significant disparity in the communication skills of the parties.  

I majored in English in college.  I remember very clearly an assignment in one English class where we were asked to write seven pages on two lines from Homer’s Odyssey.  Two lines of poetry.  Eight or nine words.  In order to complete the assignment, we had to drill deep into the meaning of each word, discuss the possible interplay with each word and the one that preceded it in detail, discuss again the interplay with that word and the one that followed it, then create a chain of interpretations that created meaning that was consistent with the rest of the work.  It was frustrating at the outset, but was also extremely instructive, as it laid bare how variable and complex language can be, and how, as discussed above, even a simple phrase can be interpreted in many ways.  

Not every writer is Homer.  In fact, most people, when they write, don’t spend time considering the complex interplay between one word and the next.  Most people use the words that come to mind when they have a desire to express a meaning, and leave it at that.  Some people are good at that.  Their writing is clear and conveys the meaning that they hope it will to the majority of readers.  

Some writers suck.  

Speaking and writing are very different skills.  People who are very good at expressing themselves when they speak are not always as proficient with the written word.  The converse is true as well.  Writers are not always speakers.  When in a dispute, or in a relationship that has problems, writing that is unclear or that can be misinterpreted often makes matters worse.  

An example:

Jimmy and his ex-girlfriend Amy have a child, Mary.  Their kid is about 4, and when she recently went from Jimmy’s house to Amy’s house, Amy noticed a rash on Mary’s leg that hadn’t been there a few days before.  She called Jimmy and asked him if he had noticed it.  Jimmy said no, but that he’d keep an eye on it, and she promised to do the same.  A few days later, after exchanging Mary back and forth again, Amy checked the rash again and it was much worse.  She texted Jimmy “why the hell didn’t you take Mary to the doctor?”, she asked.  To her, it was clear that it was a medical issue that needed swift resolution.  Jimmy’s response, “I didn’t think it was that big a deal”, sent Amy into a fury, and she responded by telling him that she thought he was “a fucking idiot”.  Jimmy responded that she is a “controlling bitch”…and then they ended up in my office.

Clearly, Jimmy and Amy disagree about the severity of the rash, and the course of action that it requires.  It is striking, however, that they could have the conversation on the phone that goes well and articulates a plan, and that they would subsequently text and it dissolves into animosity.  

When they arrived in my office, and they were again speaking, rather than writing, it became clear that Amy had been alarmed when she had asked him “why the hell” he hadn’t taken Mary to the doctor, and that it wasn’t taken as the attack that Jimmy had perceived it to be.  Further, upon looking at pictures, in the several hours between when Jimmy had dropped the child off at school and when Amy had picked her up, the rash had gotten significantly worse.  They were able to work through this and to come up with a plan for when she’d go to the doctor and with whom, including how the doctor’s conclusions would be communicated to the other parent…all without dissolving into the invective that it had taken a few short texts to achieve.  

When subtly of meaning exists, this can be even more difficult.  Take the example of envious vs jealous.  To some people, these two words have nearly the same meaning.  To others, being envious implies a wistful desire to have something similar to what another person demonstrates.  Being jealous implies both a desire to have what that person demonstrates, and a desire to share in that particular one.  

This is best described with an example.
 
Bob texts his friend Steve a picture of his new car.  Steve feels a twinge of…something.  
Envy would be if Steve’s twinge was a desire for a new car of his own - maybe even one like Bob’s.  

Jealousy would be if Steve’s twinge was a desire to have the exact car that Bob now owns…a desire to get Bob out of the driver’s seat and replace him.


Romantic Envy and Jealousy

In terms of romantic relationships, envy and jealousy are common and the distinction is very important.  Instead of a new car, it might be a new lover, or it might be a vacation that one parent takes with the parties’ child to which the other parent might not be invited.  


Being envious because of the new lover might suggest wishing to have a new lover of one’s own, whereas jealousy suggests a desire to take the place of the new lover.  


Being envious of the vacation suggests a wistful desire to be able to offer the child the same kind of experience, whereas jealousy implies that the parent who isn’t on the trip wishes they were there, perhaps in place of someone else.  


The problem is, for some people, jealousy and envy mean the same thing.  For others, they are two subtly different words with subtly different meanings.  If the parties do not have the same perception, problems can arise.  


Given the above examples, and the possibility for confusion there, imagine a mother texting a picture of her, her new husband and the parties’ child with Mickey Mouse to the child’s father to show how happy the child is at Disneyland.  

The father replies “Awww…I’m so jealous!”

What does he mean? 


Email vs. Text
 
To an ever increasing extent, texts and emails are different.  For many people, both appear on their mobile device in almost the same way, but emails convey an official nature and a formality that texts do not.  Emailing “I need to set up a time to talk to you” carries a very different connotation than getting the same message in a text.  If the text actually says “I need 2 set up a time to talk 2 u”, there is still less formality. 


That means that in deciding how to communicate with one another, people in a dispute should be aware of what the method of communication says about the message that they are trying to convey.  There is not a right answer or a wrong one here, there is simply a recognition that emails and texts, while they may say the same things, send very different messages. 

 
Pitfalls of Texting
 
Texting is a difficult mode of communication.  While it can be informal and quick, it can also lead to informal and quick responses rather than thought-out or measured responses.  In a dispute, this can be dangerous.  Similarly, the time between responses, whether there is punctuation, or capitalization, the length of the text, the use of whole words rather than substitutes, or the use of emojis…all of these things can convey a very different message than the one intended. 


All of these factors are impacted by age, gender, generation and schedule, and it makes the subtle undertones behind any text message potentially problematic.  When in a dispute in which one party might be looking for reasons to continue the dispute, ‘potentially problematic’ becomes an understatement.


The Bottom Line

There is no clear answer to how to communicate with someone with whom you are in a dispute.  There is no way to say ‘use texts rather than emails, and include at least 2 emoticons and your communication will be fine!’  Obviously, human communication doesn’t work that way.

Do be aware of how your messages might be received.
Do be aware that more information conveyed in any form of commutation that exceeds what you say.
Do be aware of the fact that the other person might not want to cut you any slack.
Do be aware that the other person might view your message in the worst possible way, rather than the best.
Therefore, with this awareness, be careful and deliberate about how you say what you say. 

Taking the extra time to craft your message before you send it can save tons of time, heartache and trouble down the road. 


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