KATHLEEN CHADWICK: Good afternoon. I should say, good morning, because everybody's probably sleepy right now.

     CASKEY: Oh, you caught us.

     CHADWICK: I'd better speak into a microphone. On the telephone I sound like a nine-year boy. I've been mistaken for my son.

     I'm a licensed professional counselor. I work in the trenches, with families, children, parents, and other individuals.

     I bring 15-years of full-time psychotherapy practice to bear in all of the opinions I express here today.

     I have 40 hours of mediation training under my belt, taught by Donna Devine and Gary Kretcman. I have 97 academic hours toward my doctorate in counseling psychology. I've completed GAL CASA training. I've completed advanced training through the University of Missouri-Columbia, in Psych Assessment and Custody cases.

     I was very fortunate last winter to be invited to speak at three cities in Brazil on family dynamics. However, my - probably, my main qualification to be here today, and, hopefully, to offer something of use, is that I'm a parent of five children. All of my children are members of binuclear families. All of my children have four parents. Two bio's and two step's.
 
    I also bring to bear own experience of divorce, two years of voluntary and joint legal and physical custody, followed by my remarriage and relocation to a town about an hour and fifteen minutes from the home, my children's father's home. A great deal of flexibility and changes have occurred over the ensuing years. My oldest child remained with his father to graduate from high school. He remained there two years. My next child down, spent a year and a half living with her dad for high school, and two and a half living with her stepfather and myself. We now have three children in the home full-time, and I say, full-time, because my stepson is - he is a joint custody physical, as well as legal custody arrangement. Both of his parents at his other home get along well with myself and his biological father. He's one week with us, and one week at the other home. He's our child. He's their child.

     Today, I will be expressing a rather strong opposition to the rebuttable presumption favoring joint custody.

     I want to respond to Dr. Warshak's comments. I strongly agree with his statements about the importance of supporting and validating increased contacts between children and parents. Father absence, father longing, does exist in children and adults, and it creates serious potential problems for many children later in life, both sons and daughters. There's a great deal of research in this. By the way, it's a hot topic.

     I've worked in the therapy process with many men and women suffering from lifelong father hunger. Most of them have been from intact families, but that may be because of the generation in which they were raised.

     I agree, very, very strongly with Dr. Warshak that children need quality and quantity relationships with both parents. I agree with his list of factors that are linked to positive post-divorce adjustment in children. I agree that joint custody can be the best for many children, and that it can also be good for parents. Most mediating parents, in fact, do choose joint physical custody. However, Dr. Warshak described research results where voluntary joint custody was studied. This research cannot be generalized to support rebuttable presumption favoring joint custody. That would not be scientifically sound application of research.

     Rebuttable presumption favoring joint custody has been so many complexities that weren't studied in the research described by Dr. Warshak. So, the question now, is rebuttable presumption favoring joint physical and legal custody the answer? I don't think so. I suggest that you consider that the best interest of the child from the standpoint of developmental psychology, the best interest of the child will only be served if conditions promoting flexibility are built into any post-divorce parenting plan. I am opposed to a rebuttable presumption favoring joint legal and physical custody. I see it as a regression to the age of the tender years doctrine, a rebuttable presumption for joint physical and joint legal custody, both, prematurely undercuts the co-parents possible ability to negotiate a parenting plan that would best meet the needs of their unique child. It does not empower the parents. It does not presume that both parents are equally competent parents. Rather, it presumes that both parents are too unstable and immature to focus on the needs of their child. It assumes that the child's input would be irrelevant. What message does this send to parents and to children? It does not provide incentives for cooperation. It merely assumes, paternalistically, that cooperation will be automatically enhanced by the court placing a strong default position in front of the co-parents and the child.

     The rebuttable presumption favoring joint legal and physical custody unrealistically ignores the nonstatic nature of post-divorce co-parenting. It increases the likelihood of relitigation, and so it certainly is not cost effective for the parents or the courts. This problem exacerbates the parent's and children's problem in developing the future orientation so necessary for family healing. For the parents to grow more able to focus on the needs of their child, and for the divorce wound of all family members to heal, we must empower the parents. But, perhaps, worst of all, placing a burden of evidence on the parent opposing joint physical custody, requires one parent to put on a public display of family problems, particularly to denigrate the other parent in some way to the court. Is this in the child's best interest?

     Regarding child custody, I favor the status quo in Missouri, which, in effect, assumes joint legal custody and clearly recommends joint custody over other parenting plans in most cases. It allows for more parent participation and child participation in the development of the parenting plan, and built in accommodations to the inevitable fluctuations of life.

     What the research described by Dr. Warshak shows is that the system does need to be open, to accommodate whatever parenting plan the parents can come up with through nonconfrontational means. His research supports nonconfrontation, reduction of conflict, not joint custody, in my opinion.

     Legislation needs to provide mechanisms to educate parents and allow them to come up with the best parenting plan for their family, and rather than make shared custody the presumptive plan, we should remove impediments to successful implementation of shared custody. One of these implements is judicial resistence to the concept, especially in the rural area, where we live, in northwest Missouri, and surrounding counties. We live in Caldwell County. I work in Dekalb county.

     The legislature of Missouri has statutorily removed the tender years presumption. You have stated the state's preference for shared custody by making education and mediation mandatory and setting in place enforcement mechanisms like Judge Frawley talked about. You can allow and encourage parents to practice shared custody in those cases where it is in the children's best interest without mandating in an appropriate way.

     Regarding the importance of empowering the parent. I propose that the way to do this is to mandate divorce education and mediation. I do think they go hand-in-hand. Custody legislation should empower parents, which is my problem with rebuttable presumption, is that it does not empower parents, one of my problems with it.

     If custody legislation does not empower parents, the courts will be micromanaging post-divorce family life for years to come and so will therapists and that's really not what I want to do as a therapist.

     Also, I believe we are more likely to achieve greater long-term success if we require that divorce education be followed by mandated mediation regarding future parenting plan, and that both of these occur prior to the divorce hearing. It's simply logical to me that if parents going into the mediation process have already participated in a divorce education, divorce parenting education program, those tend to be relatively brief, sometimes involving just watching a video tape, sometimes a little more extensive, but having any degree of that would greatly facilitate, I believe, the mediation process.

     The combination of divorce education and co-parent mediation, as well as each, separately, have been shown to improve outcomes of divorce processes for many families, and to produce more efficient and less costly court proceedings, consequently, reducing relitigation.

     I'm going to talk now about research on the effectiveness of divorce mediation. The American Journal of Orthopsychiatry, published in 1996, the results of a study on long-term affects of divorce mediation and resolution of child custody dispute. They found that non-custodial parents assigned to, but not mandated, to mediation reported more frequent current contact with their children and greater involvement in current decisions about the children. Parents in the mediation group also reported more frequent communication about their children during since dispute resolution.

     In 1996, the family and conciliation courts review published Joan Kelly's exhaustive review of a decade of divorce mediation research. Even though, in my opinion, and others, divorce mediation is pretty much - it has been researched for at least 10 years as much as possible. Kelly reported that in most studies, research resulted in more joint legal custody, compared to the adversarial processes. Other studies showed that mediating co-parents tended to agree on more expanded parenting time for their child with a non-custodial parent, than did the litigating groups. Mediated agreements differed in their greater level of specificity and detail, compared to attorney negotiated or litigated settlement. Most studies reported higher rates of compliance with mitigated agreement, when compared to agreements reached in the adversarial process, and a 1994 study, randomly assigning disputing parents to custody mediation or custody litigation. Parents who mediated reported less conflict, one year after settlement, compared to those who litigated, and nine years later, these mediation parents communicated more with one another about the children, and the non-custodial parents who had been through mediation were more involved in current child related decisions.
 
    I propose and recommend education and mediation, not rebuttal presumption favoring joint custody.
 
    Divorcing co-parents generally show themselves to be capable despite the significant stress they are experiencing to come together with mediation assistance to focus on the needs of their child, just as there are age related windows of opportunity during which a child may learn certain skills, such as language, more easily than at other times. There are windows of opportunity for us to assist families through the divorce process. Pre-divorce, as ugly as that period of time typically is for couples and individuals, appears to be such a window of opportunity for mandated divorce education followed by mandated mediation to be effective. This approach is more likely to achieve long-term success than a legislated rebuttal presumption favoring joint legal and physical custody. This pre-divorce difficult time may be the time during which angry, hurt co-parents are most likely to respond to intervention. Better now, than relitigation later.

     Every psychotherapist knows that a crisis is always the harbinger of change, and thus, the window of opportunity. Education and mediation combined are likely to produce a more rapid restabilization of life for the child with more and higher quality access to both parents.
 
    As has already been said today, mediation is not a panacea, and it's not always appropriate, but when skillfully used with properly selected co-parents, mediation potentially offers a beneficial side effect. It is, in effect, a psychological ritual of closure for the co-parents, and when included, as does sometimes happen in some parts of the country, in some mediation programs, children are included. In effect, mediation can provide a psychological ritual of closure.

     When a beloved friend or family member dies, the rituals of the visitation and funeral or memorial service truly help the survivors to let that person go, to treasure what was good in their memories of that person and to move on, looking forward. We all know that. Most of us have been through something like that before. Hated the ritual, and felt better afterwards, usually, as far as funerals and that sort of thing does anyway. When the beloved dream of the traditional family dies, mediation may prove to be one of the rituals which assist the co-parent in letting go of intense resentment and hostile interactions which often serve as a twisted way of attempting to prolong the previous marital relationship. I have seen this often in my own work with divorcing couples. They tend to, many divorcing couples, unconsciously, not intentionally,  try to carry on a hostile intimacy, which astonishes them when I point out to them that is exactly what they're doing. They are, perhaps, during this angry, bitter period, being more intimately connected to this horrible person they're trying to divorce than they were when they were married. It's just that the intimacy is hostile.

     Perhaps, in some cases, mediation may help parents to face the end of the marital bond and to adjust to their new relationship as co-parent.
 
    With so much evidence indicating that giving most parents an active role in developing an appropriate and workable parenting plan, benefits children, increases compliance, improves access, and reduces relitigation. Why would the Missouri legislature establish a rebuttable presumption in favor of any particular form of co-parenting plan?

     Dr. Warshak's research does not show that rebuttable presumption of shared custody has good results for children. It does show that when the system permits and encourages parents to work together towards a good decision for their children, then the results are very likely to be good for children.

     I ask you to mandate, not a technique or a result. Rather, I ask you to consider mandating a process. Thank you.

     CASKEY: Any questions? Representative Ridgeway.
 
    RIDGEWAY: I should have stopped you earlier in your testimony, but about a third of the way through you mentioned something that you had noticed, just your observations, peculiar to northwest Missouri. Do you recall what that was?

     CHADWICK: I couldn't hear the last part of your question?

     RIDGEWAY: You said that there was something unique that you had noticed concerning the court system in northwest Missouri. What was that?

     CHADWICK: A strong resistance to developing family court. Our circuit does not have a family court, and, one of our associate circuit judges, who I do happen to be married to, which some of you probably know, has worked and continues to try to inform other judges in the circuit and surrounding circuits of the benefits of family court. So far, not with a lot of success. Mediation, not surprisingly, also isn't happening, in northwest rural Missouri. It's just not happening. Liberty, yes. That may be about as far north as it gets.

     CASKEY: Any other questions? Thank you, very much.

     CHADWICK: Thank you for inviting me.