• January 28, 2022

Let’s talk about your child’s best interests

Let’s talk about your child’s best interests

Despite an abundance of love for their kids, one of the hardest things for parents to do in family mediation is to understand and accept what is in the best interests of the children.

What does the best interests of the child mean?

In 1995, The Family Law Act, (1975), was amended to specifically include the words, ‘best interests’ regarding children, based on principles set out in the United Nations Convention of the Rights of Children. In FDR mediation, parents, like judges, are also required to consider the best interests of the child as the chief concern when creating a parenting agreement. But what does best interests mean? Best interests of the child must include both short-term and long-term and concerns, with a primary focus on the child’s physical and emotional wellbeing, ensuring they are protected from physical and psychological harm including abuse, neglect, and family violence. Where possible, the best interest of the child is when both parents have meaningful engagement and involvement in the child’s life.

What happens when parents’ needs come first

One of the skills of a mediator is to help parents in family mediation refocus their attention to the needs of the child, in scenarios where it has been replaced by their own needs. To be clear, most parents don’t realise they are focusing on their own interests above the interests of their kids. Given the emotionally charged circumstances of many family mediations, discussion can quickly descend into an argument between the parties, triggered by an accusation or emotionally charged comment. When this happens, parties go from a co-parent perspective to a person in an adult relationship perspective, and individual needs unconsciously come before the needs of the children.

What happens to the kids when their needs don’t come first?

No matter how collegiate the family breakup is, children nearly always experience social and psychological impacts when their parents separate. Children feel particularly vulnerable; with fears of abandonment, a longing for parental reconciliation, grief stemming from loss, worries about being in a single parent household, social dislocation, a decrease in socio economic status and uncertainty about the future, are all common concerns. These impacts can be further exacerbated by the introduction of a new partner and step siblings. In short, parental separation mean all kids experience a seismic shift in their world, of which they have no control or input into. Some children will adjust to their new world, others with struggle. If parents remain engaged in a high conflict relationship, already vulnerable children will be at greater risk of developing ongoing patterns of problematic behaviours that can impact them well into adulthood. These behaviours will manifest in some children losing their ability to trust, making poor attachments, losing self-esteem, becoming overwhelmed by their emotions, acting out (bad behaviour), having difficulties forming and keeping friendships and performing poorly at school.

How can parents stay focused on the best interests of the kids in mediation?

Often, when parents face each other in family mediation, they experience an acute stress response referred to as ‘fight or flight’. These feelings trigger a hormonal response, which in the case of mediation, prepares the body to stay and deal with the perceived threat. The hormone release activates the body’s sympathetic nervous system initiating reactions such as increased heart rate, blood pressure changes, and faster, shorter breaths – the body is tensing as it prepares to act. Before parties can focus on something else (ie the kids), they must regulate themselves to turn down their body’s response to fear. In FDR, the mediator will be attuned to the ‘flight or fight’ reaction one or both of the parties are experiencing and will skilfully begin the process of shifting the focus from each other to a shared focus on the child, which can help regulate people, by bringing them back to the purpose of the mediation.

Sometimes the mediator will ask the parents to each bring a photo of the child to mediation, as a reminder of the most important party in this challenging negotiation – a visual image can quickly change the body’s response – and refocus the parents. A mediator may acknowledge the interpersonal pain the parents are experiencing, reminding them that despite their pain, both love their children and want to act in their best interests – if shown how. The mediator is there to guide them into thinking in the interests of the child. Mediators can help change the dialogue, by asking parents about their children – attributes, personality, concerns and needs allowing for parents to shift towards a more reflective mindset.

In instances of high conflict FDR, the mediation may swing from adult to child concerns and back again. As the mediation progresses, the mediator will know the appropriate stages to reassert the child focus – sometimes using educational resources (such as presenting the developmental stages of each child to aid the parents in their understanding of the child’s needs) to help the parents’ make informed decisions in the child’s best interests. And sometimes, when the parents are arguing from a positional point of view (their interests), the mediator will refocus on common ground – the fact they both love and care for their children deeply.

During mediation, parents sometimes need reminding that they will look back at this session, grateful that they could put their own issues of conflict aside and focus on a parental relationship that will meet the child’s needs today, and into the future. The cost of not reaching an agreement will have enormous negative and ongoing impacts on the children – that is often a powerful reminder to parents of why they are there in the first place – to alleviate the painful impact their conflict is having on the children. Gentle, non-judgemental reminders like these help parents move away from their adult differences and towards the needs of the child.

Parents who find the ability and willingness to move from being an adult couple in a conflict relationship to new roles as co-parents of their children, demonstrate their capability to make decisions in the best interests of the children, helping them to cope and move forward in their young lives, too.

To help you prepare for mediation, we have created a library of helpful information including checklists, tips and added detail around the process of mediation. For useful and relevant information you can download for free, we encourage you to visit our resources page.

Author: Cath Pope

Family Dispute Practitioner, Fresh Start Mediation


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