Solving custody disputes outside the legal arena

30th November 2007, Comments 0 comments

Rachel Levy reports on the case of a Dutch national's child custody wrangle with his Canadian wife, a situation which was finally resolved through mediation.

Three years ago, Dutch national Hans's life was one of turmoil as he, his children and ex-wife living in Canada were entangled in a messy child custody wrangle.

Following a tough international legal battle, he had won custody over his children and brought them back to the Netherlands.

There he discovered they resented him for fighting their mother. Bringing them up alone was another factor he found himself unable to cope with.

Communication had all but broken down. But then he found a solution - mediation.

A conference of 50 professionals in Apeldoorn is now discussing this new approach - mediation instead of litigation - as a way of resolving serious cases like that faced by Hans.

"After beating my ex-wife in court in the 1980 Hague Convention procedures that helped me return the children to the Netherlands, I discovered I had won a legal battle but lost my family," Hans told Deutsche Presse-Agentur dpa.

"Communication with my ex-wife had reached an absolute low following the legal proceedings. The children resented me for taking them out of their environment just when they finally felt settled in Canada. They also had a difficult time living without their mother."

Their mother, working part-time, had always been the children's primary caregiver. Now, Hans had to replace her while working full-time. It proved impossible.

Mediation resolved the problem.

"We negotiated a new settlement for more than eight months and drafted a parenting plan for custody and visitation. The two youngest children returned to their mother in Canada. Our eldest son stayed with me," he said.

His story marks a change in the way professionals today deal with the 1980 Hague Convention on Child Abduction.

This agreement helps prevent abductions, but in the process throws parents into new legal proceedings. This does not contribute long- term parental cooperation.

"Particularly common law countries are known for creating maximum adversity between divorcing parents," says Denise Carter, director of Reunite.

Reunite is a British non-governmental organisation that helps parents who deal with international abduction, travel or relocation.

Reunite was also present at the Apeldoorn conference, organised by the independent non-governmental Centre for International Child Abduction (IKO).

Contrary to many countries nowadays, the Dutch do not automatically offer mediation in Hague Convention proceedings.

"This is surprising, considering the strong Dutch mediation tradition," says Eberhard Carl, a German liaison judge who deals with international legal proceedings and mediators.

"I always tell parents any mediated settlement will make them happier than a court ruling. With mediation people regain control over their lives," he added.

International mediation works with two mediators: one for each of the parent's gender and culture.

German attorney and mediator Christoph Paul says: "It is crucial that both parents feel recognised during mediation. And they need recognise their children's binational identity."

Judge Carl notes that in western Germany, "mothers looked after young children themselves. French mothers send their babies to daycare. So you often see a French father claiming his German wife "is isolating" their 2-year-old daughter by keeping her at home.

"Vice-versa, German mothers don't understand why a French father involves his parents so much in family issues," he added.

Paul notes the cultural aspects involved in such cases: "Family members play different roles in different cultures. That is why cross-cultural mediation requires mediators from both cultures."

Whether mediation will be integrated in all 1980 Hague Convention proceedings, remains uncertain.

"Mediation can only be successful if both parties have an open mind and are willing to consider different, original, solutions," Paul asserts.

"A pragmatic mind-set is key to conflict-resolution. It is however important to remember that pragmatism is primarily a feature of north-west European culture," he added.

30 November 2007

[Copyright Expatica 2007]

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