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Charlee Lane

Document Type

Article

Abstract

There has been ample study devoted to the problems that arise when courts are faced with custody disputes intertwined with issues of religion. Unfortunately, many of those studies conclude without proposing an effective solution or by suggesting an alternative without defining what that alternative might be. A solution must be employed that allows religious consideration in a forum more suitable to facilitating a resolution in the complete best interest of the child and parents. Mediation provides this forum by facilitating a negotiation in which parents are allowed to develop their own collaborative solutions to interfaith child custody disputes. Through techniques unique to the practice of mediation, parents are more capable of resolving religious conflicts affecting child custody, and thereby enabling the parties to create a parenting plan and binding mediation agreement that would not only resolve immediate divorce contestations, but also provide a basis from which to resolve future issues. The flexibility of mediation also allows for considerable advocacy of the child's rights without the burden of legislature that requires the balancing of parental-rights against state responsibilities. Part II of this article purports to identify the need for an alternative to litigation in these cases by defining the social context in which these cases have become more prevalent, the constitutional barriers faced by courts, and the inadequate protection afforded to children's rights in traditional litigation. In response to that need, Part III proposes a specific mediation model, drawing guidance from the courts, that involves: an evaluative stage in which the parents and child are afforded an opportunity to express their interests, a facilitative stage in which the mediator and other participants assist the parties in resolving the dispute with an aim towards consistency, and the formulation of an agreement that serves the best interests of the child and is perceived as fair by the parents. The mediation model utilizes a structured and process-oriented approach, which incorporates the participation of advocates for both the child and the religious preferences of the parents. Part IV concludes this article by emphasizing that the use of the proposed mediation techniques provides a solution to the problems faced by courts, divorcing couples, and children in the context of determining the religious upbringing of children in custody conflicts.

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