Mediation is a form of conflict resolution that empowers parties to resolve disputes on terms that all agree are workable. Years ago, when I first started to handle family law cases I asked a fellow attorney why we were not in mediation on a particular case. I told him that I felt like we could resolve the case in just a few months rather than years if we agreed to mediate. He responded, "then how will we make any money?" I was taken back by this response. Sadly, the case that could have benefited from mediation that we were discussing remained pending for years. Still worse than the time and resources lost to this case was the loss to the family members who spent years as adversaries in the court system. The task of reconciling these parties to one another was compounded again and again by years of fighting in court. After family court the parties are still family. It became apparent to me that family court would be benefited by an early focus on reconciliation of family relationships in most cases. Grandparents, parents and children should not be enemies. The adversarial process of our court system is ill equipped to offer solutions that promote and maintain healthy family relationships. Frequently the players in the system lament the fact that "parents just refuse to get along." However, the entire blame for this cannot be set on the parents. We force them into an adversarial process and they become more adversarial. It is like a movie scene where normal people are placed in a gladiator's arena and forced to fight to the death. Whether the combatants were violent before or not the situation demands that the parties attack one another just to ensure survival. 

The courts that handle family law issues would be benefited greatly by early attempts at non-adversarial conflict resolution. Mediation at the earliest stages would benefit families seeking long term solution to conflict. In fact, most such cases would benefit from mediation before courts and attorneys are even involved.

The Family Court and the Domestic Relations Court are courts of equity. In plain terms the idea of "equity" is doing what is right, whereas "law" is doing what is legal, or what the law dictates. Equity usually functions in those areas where there is no law to tell the court specifically what to do. Equity is also meant to function in those areas where perhaps hard and fast rules are not practical. In custody cases situations are different for every family. School, work, church and other schedules present different challenges in each case. A standardized visitation schedule does not fit every case. This simple fact has led many to believe that the court should have unlimited discretion to craft any custody/visitation schedule it desires. Unfortunately, discretion without guidelines has let to judicial decisions that accommodate the convenience of one party over another. Other considerations have crept in as well that have been elevated above the best interests of children. A tradition that stability is best achieved by geographical considerations as opposed to family relationships has become common. This tradition, despite having been debunked, continues to guide many judges. Additionally, placing emphasis on sibling relationships to the detriment of parent child relationships has caused suffering. Without legal guidelines judges have looked to other sources for guidance. Legal standards are needed in child custody matters to function much like sentencing guidelines do in criminal matters. Guidelines and standards are needed to ensure that fit parents are treated like fit parents and unfit parents are treated like unfit parents. Guidelines and standards will better ensure just and consistent outcomes. Clear legal guidelines should guide equity.

Shared custody is trending throughout the United States. The trend is a result of the consensus that children are better off with both of their fit parents. The science has shown that kids have healthier, happier and more successful lives when they have two loving parents. Below is a list of some the legislation pending around the country. I remain hopeful that we wont come in last on this trend.

Arizona 25-403.02(b)
“Consistent with the child's best interests in section 25-403 and sections 25-403.03, 25-403.04 and 25-403.05, the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time. The court shall not prefer a parent's proposed plan because of the parent's or child's gender.”
Minnesota 518.17(a)
 “.. the court must consider and evaluate all relevant factors, including: …..(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent…”
Alaska Sec. 25.20.060.
“(c) The court may award shared custody to both parents if shared custody is determined by the court to be in the best interests of the child. An award of shared custody shall assure that the child has frequent and continuing contact with each parent to the maximum extent possible.”
2016 Missouri 452.375(5)
 “Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:
(1) Joint physical and joint legal custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes”
Mississippi  93-5- 24 (1)
“(1) Custody shall be awarded as follows according to the best interests of the child:
(a) Physical and legal custody to both parents jointly pursuant to subsections (2) through (7).”
Nebraska 42-364(3)
“Custody of a minor child may be placed with both parents on a joint legal custody or joint physical custody basis, or both.”
South Dakota  25-5- 7.1
 “If the court awards joint legal custody, it may also order joint physical custody in such proportions as are in the best interests of the child, notwithstanding the objection of either parent.”
Utah 30-3- 10.2. 
“(1) The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.


Idaho 32-717B.
"Joint custody" means an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents. The court may award either joint physical custody or joint legal custody or both as between the parents or parties as the court determines is for the best interests of the minor child or children. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody.”
Iowa 598.41
“The court may provide for joint custody of the child by the parties.  The court, insofar as is reasonable and in the best  interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the  child the opportunity for the maximum continuing physical and  emotional contact with both parents after the parents have separated  or dissolved the marriage”
Louisiana LA Civ Code 132
 “If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly”
Minnesota 518.175 subd. 5
 “A modification of parenting time which increases a parent's percentage of parenting time to an amount that is between 45.1 to 54.9 percent parenting time is not a restriction of the other parent's parenting time.”
Washington 26.16.125
"Henceforth the rights and responsibilities of the parents in the absence of misconduct shall be equal, and one parent shall be as fully entitled to the custody, control and earnings of the children as the other parent, and in case of one parent's death, the other parent shall come into full and complete control of the children and their estate."