Stuart Showalter Law Blog: The perspective for a successful child custody agreement

In my life coaching I present insight and strategies to tackle various aspects of the well-being and success spectrum. On the macro level the connecting umbrella theory is that all modifications of habits or behaviours that are necessary to goal achievement and improvement in the well-being spectrum begin with a change in perspective.

The problem that I usually encounter with my life coaching partners is that their perspective is based upon a comparative standard or has been distorted through the lens of marketing. For instance, I am excessively fat at the moment. That's not based upon comparison to the energy hoarding, buffet waddling, doorway snuggling dead animal consumption machines that comprise a substantial portion of my local community. Nor is it based upon any of the health magazines, tv commercials or other forms of commercialism for which I have an extremely limited exposure. An objective view of my early spring midsection against the backdrop of the food security for which I am fortunate enough to experience, as every American does, is the determinant criteria stipulating that I have excessive fat. My BMI of 20 which may be viewed by many, especially those with a higher BMI, as being too low. Based upon what it will be in late summer -- 18 -- I currently feel chubby. For most people their perspective, however, is often based upon improper comparative or irrelevant standards.

Comparative standards are the vehicle by which marketing professionals coyly drive your pursuit of consuming, especially through your rationalization. Here is the anecdote of the episode that prompted this current posting. As I was taking a relaxed stroll through the grocery store, moving into the inner aisles from the periphery I was casually glancing at some of the canned and boxed foods. The blatant deception or outright lies by the makers of imitation foods catch my eye and raise my ire. What caught my eye was a chemical additive claim brandished by a can of whole kernel corn - “reduced sodium”. I quickly grab the can, give it a spin and see that a serving contains 8% of the recommended daily allowance [RDA] for sodium. I know without consideration that regular corn contains much less than 16% of the RDA for sodium. As someone who consumes about 20-30 servings of fruit and vegetables daily I would be way over the limit on sodium if this was real. So how do these processors legally tell the lie that they have reduced the amount of sodium in corn and other vegetables? They set a false comparative starting point. Here's how it goes;
Del Monte Whole Kernel Corn 125g serving contains 360mg sodium
Del Monte “Low Sodium” Whole Kernel Corn 125g serving contains 180mg sodium
Fresh Whole Kernel Corn - 125g serving contains 15mg sodium
What the food adulterers do – which is claimed on the label in small print – is pump excessive amounts of additives into foods to turn them into non-foods. They can then reduce the level of additives by half, slap on an alternative label that claims that they have reduced the load of harmful content in the food. What they don't say is that their “reduced sodium” version is “1100% increased sodium”.

It's much the way bloated Washington bureaucrats and politicians “reduce” the budget deficit. They start with last year's budget – 100 kazillion bucks – and add 10%. Then comes the “cuts” to which the agencies or politicians begrudgingly agree. After cutting the increase in half this year's budget becomes 105 kazillion bucks – just 55 kazillion more than the government revenue each year of 50 kazillion bucks. Thus the budget deficit gets “cut” from 50 to 55 kazillion. It all comes down to reference point.

It is with this perspective that I present the appropriate standard that parents should use when engaging in child custody negotiations. Just as in the canned vegetables example it is reference point that determines one's perspective for the claim. My reference point for the sodium content of vegetables is extremely low -- fruits and vegetables have very little sodium. The various food processors – I don't aim to pick on Del Monte, they all do it -- set their reference point for their so-called “reduced sodium” vegetables extremely high. When most parents attempt to engage in child custody negotiations they usually enter the foray with the status quo as their respective reference points. Often there is an imbalance in the parenting time distribution that usually follows the minimum recommended parenting time for a non-custodial parent [NCP] established by the Indiana Parenting Time Guidelines [IPTG]. That being every other weekend, a midweek evening, half of the summer break and an allotment of the various other holidays and school breaks.

The parties in this type of situation enter the negotiations with a nearly preset psychological impasse. That being that the custodial parent is loss averse while the NCP is benefit seeking. The weight that each applies to their position is often disproportionate to their actual chance. Parenting time decisions are intentionally difficult to modify and in Indiana when parenting time for the NCP is less than the minimums provided for in the Indiana Parenting Time Guidelines the decision must be accompanied by findings justifying the deviation. Thus, the NCP runs little risk in seeking additional parenting time. This is the psychological dynamic that lotteries are based upon or can perpetuate the wide swings in financial markets. Those who feel like they have less are willing to spend significantly for a chance to have much more. On average, households that make less than $12,400 a year spend 5 percent of their income on lotteries.[fn1]

Those who perceive that they have little to lose are benefit seeking while those who perceive themselves as having much to lose are more risk adverse. In terms of parenting time a framing bias can interfere with negotiations. When seeking one overnight per week in addition to the every other weekend a NCP will double overnights. The chance of losing the weekends is nearly nil. For the custodial parent the loss of one additional weeknight would be from six nights per week on average to five – about 17%. If the custodial parent views the parenting time challenge from the statutory requirement of a substantial change[fn2] in one of the factors[fn3] and doesn't feel there has been a change then he or she is likely to hold firm and take the risk. It then requires reframing of the issues and a risk analysis to make mediation successful.

The framing for effective mediation must focus first on the child. What is the best arrangement for the child to thrive in? Then risk aversion must be factored. The NCP will most likely come away with nothing but attorney fees if the substantial change threshold is not crossed. For the custodial parent the loss could go all the way to becoming the NCP or be as little as just having to pay defending attorney fees if the judge feels it was a valid action but didn't warrant a change in the current order.

By coming to the table with a frame of reference consistent with the needs of the child most parents would be able to agree on parenting time and custody issues. But when an artificial base such as the IPTG minimums is introduced the two sides have different set points from which to begin negotiations. This is a barrier to effectively reaching an agreement.

1] Lehrer, Jonah “Cracking the Scratch Lottery Code” found at http://www.wired.com/magazine/2011/01/ff_lottery/all/1
2] IC 31-17-2-21, 31-14-13-6]
3] IC 31-17-2-8, 31-14-13-2]

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