Excerpts from The Constructive Divorce, by Mark A. Chinn, published by the ABA and available at ababooks.org.
Divorce lawyers and clients are caught up with the notion that one person gets custody and the other person doesn’t. They talk in terms of "winning" a custody case. I have heard many people say, for example, that custody matters must be hard or even impossible to mediate because neither party will compromise on their desire to "win" custody. Custody cases are often described as custody "battles." When talking about resolving a custody matter, clients often talk in terms of what the other parent "entitled" to or "not entitled" to.
Viewing custody matters in these ways and using the terminology described wreaks havoc on the resolution of family disputes and creates family conflict. Psychological literature and common sense dictate that children are best served by parenting from a father and a mother in a healthy, civil, friendly, cooperative environment. Both parents are critical to proper upbringing. Participating in "winning" custody "battles" takes the focus completely off of the children and places it squarely on the parents. Speaking and acting in terms of placing "custody" with one parent and not the other creates an uneven parenting balance and relegates the "losing" parent to second class parent or visitation parent. This reduces their importance in the minds of all concerned, particularly the children. Utilization of win/lose terminology such as "custody", "battle", "winning", "visitation", "primary", creates controversy where, in fact, none may exist and prevents swift resolution of the real issues.
Positive terms include, "parenting plans", "access", and "joint." Positive terminology takes the emphasis off of the "battle" and places it on problem solving. Few lawyers and judges seem to be aware that the Mississippi custody statute does not use the term "visitation." Instead, the term, "physical custody" is defined as, "where the children are." With this statutory language, we suggest a movement towards providing that Mom shall have "physical custody" at all times except those times when Dad shall have "physical custody." Suddenly, the only issue to resolve is the only important one, and that is where the children are going to be, when.