Abstract
When the couple returns for their second meeting with the mediator, the formal mediation begins. While it is common practice for mediators to assure themselves at this point that all of the financial information requested of the parties has been compiled, and their budgets completed, it is recommended that these questions be put aside for the moment, and that the mediator turn instead to the question of the couple’s children.
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Notes
The courts of the various states take very different views when the problem is presented to them for determination. The polar views are probably expressed by the courts of New York and New Jersey. In New York, “[d]isruption of the relationship between the non-custodial parent and the marital issue by relocation of the custodial parent in a distant jurisdiction will not be permitted unless a compelling showing of single’ exceptional circumstances’... or a ‘pressing concern’ for the welfare of the custodial parent and child... is made warranting removal of the child to a distant locale.” Courten v. Courten, 92 A.D.2d 579, 580, 459 N.Y.S.2d 464, 466 (App. Div. 1983). In New Jersey, on the other hand, the custodial parent need only show that there is a real advantage to the move and that it is not inimical to the child’s best interests. Cooper v. Cooper, 99 N.J. 42, 491 A.2d 606 (1984). As the court there stated, “If a noncustodial parent chooses to leave this state, or to alter his or her personal life style, the custodial parent cannot prevent his or her departure or change in life style even though it may severely disrupt the child’s relationship with that parent. The custodial parent who bears the burden and responsibility for the child is entitled, to the greatest possible extent, to the same freedom to seek a better life for herself or himself and the children as enjoyed by the noncustodial parent.” Id. at 55, 491 A.2d at 613 (citing D’Onofrio v. D’Onofrio, 144 N.J. Super. 200, 365 A.2d 27 (Ch. Div.), affd, 144 N.J. Super. 352, 365 A.2d 716 (App. Div. 1976)). For those who assume that what is fair is what the law says it is, this example should serve to demonstrate that it may have more to do with the rather fortuitous circumstance of which side of the Hudson River the parties happen to live on at the time of their divorce than on any necessary logic or equity.
The New York Times, October 26, 1989, C8.
The Maryland Court of Appeals has held that a child’s non-adoptive stepparent may be awarded visitation rights on divorce. Evans v. Evans, 302 Md. 334, 488 A.2d 157 (1985). Other states have even gone further and held that the stepparent may be awarded custody. See generally, Paquette v. Paquette, 11 F.L.R. (B.N.A.) 1481 (Vt. 1985).
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Marlow, L., Sauber, S.R. (1990). Children. In: The Handbook of Divorce Mediation. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2495-7_14
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