Negotiation: Child Custody

Jane is a wife who took her husband to the cleaners in the divorce, and had a favorable finding as regards the custody of the children. There is bad blood because Tom wants more time with the kids, but she has been pretty bitchy about wanting it her way.

Stakeholders: Jane as the ex-wife and mother, Tom as the ex-husband and father, the two children Diane and Doug, and Sandy Tom’s new serious girlfriend and her parents.

Seriousness: The conflict is serious because it involves what is best for the children, and the negotiation and strife caused by it should not affect the children and their relationship with either parent.

Ongoing Relationship: The parties, as a divorced couple with children, do have an ongoing relationship.

Goals: From Tom’s perspective the goal is ultimately to be able to spend more time with the kids. He would also like joint custody but if she will give him more time with the kids he is willing to forgo that in order to stay out of court.

Court: This dispute is likely to go to court, especially if Jane has decided to move away to which Tom has no recourse.

Avoiding Court: Tom would like to avoid court solely because the court costs are prohibitive. However, if the necessary he will do whatever he must to be able to see and spend time with his children.

Distributive: Tom would like to be able to recoup or make $500-600 more a month so he could move back to the same town Jane and the kids live in. He could recoup that from the spousal and child support that he’s paying out to Jane, or he could somehow make more money.

Integrative: Tom wants to be recognized as an equal parent and a good father. He wants equal or at least more time with his children and ultimately joint custody.


    Father: Tom

    Joint Custody

    He spends every second he can with the kids and feels like he is a good father. He wants joint custody and recognition as an equal parent.

    More Time with the Children

    He wants more time with the children – they are just as much his and he’s their father and he’s earned it in being a good father. He’s abided by her arrangements, and has asked for more and been denied.

    Avoid Court

    Tom would like to avoid court at all costs because it is so expensive. If it does go to court he wants Jane to pay the costs since this change is at her request.

    Live Closer/Money

    He’d like to be able to live closer to the children. This is a separate point from the financial issue. However, paying out spousal and child support has been made it difficult for Tom. It would be nice if this was not an issue for him. If he had $500-600 more a month so he can move back to the same town where the kids live.

    Mother: Jane

    Something has definitely changed from Jane’s standpoint, so it is my job to interview her with questions to find out exactly what she has up her sleeve. Fears or things I think could be possible are:

    She wants to move out of state, or far away

    She is getting married (could impact spousal support?)

    She wants to prevent the kids being around Sandy

    She wants to take away visitation (believes Tom is bad)

    She has a new job, or some other lifestyle change affecting her personal schedule

Non-Legal Options: Tom and Jane could reach a mutually agreeable arrangement where Tom could at the very minimum see the kids more often.

Standards: Unfortunately Jane pretty much has the standard plan setup already. Courts generally grant custody to the mother, and fathers are left to see the kids on weekends and summers.

Distributive Bargaining Plan:

    If Jane is willing to give up $500-600 + per month, Tom can move closer. Jane may actually want Tom to take the children more often because of some lifestyle change (like seeing a new guy, or joining the tennis club) and Tom could take more time with the kids and counter that she kick back some of the money so he can more easily accommodate arrangements (since he’d be living closer).

    If Jane is getting married, then Tom should be able to end his spousal support. I don’t know for certain but if this is because Jane is getting married then I believe he should be able to get his spousal support payment ended. If so, he may then have the money to move closer which is one of his goals.

Optimal Settlement: Optimal settlement is that Tom is able to move closer, back into the same town, and to have joint custody of the children. Joint custody of the children would mean that he would no longer have to pay child support, and would have equal time and rights to the children.

Why: Because joint custody is the optimal option for Tom, and secondly that he is able to live close to the kids which would likely be possible if he didn’t have to pay spousal/child support anymore.

Open: I would open with a disarming greeting and trying to open Jane up for questions as to the real reason that we’re here. I would open with that I want joint custody, and then build from there based on information I gather from Jane.

Why: This is the optimal settlement, and I don’t believe opening with wanting FULL custody will set a good tone for the agreement without having just cause.

Target: The real goal is to alleviate some of the financial burden to be able to live closer and see the children more often.

Why: Ultimately this is what is the most important to Tom. Joint custody would be nice, but is not required for him to meet his needs.

Resistance Point: I am not changing anything without getting something.

Why: Because she’s all ready taken all that she can from Tom, and court costs caused him to have to move. He has a court ordered custody agreement, so any changes she wants need to be to benefit Tom as well.

Concession Points:

    Willing to forgo joint custody to avoid court

    Willing to forgo recouping money to move closer if he can see the kids more

    Not willing to concede anything he has without getting something in return to benefit him

Other Side: I don’t really know what Jane has up her sleeve, but I imagine that it’s no good. Either she is going to want something drastic like moving away, or getting married and no more visitation, or she’s going to want accommodation for a lifestyle change that is outside of what Tom can do (like 8-5 Monday through Friday).

Our BATNA: Tom’s best alternative is to be able to maintain current agreement and not lose any rights.

Their BATNA: Jane seems to have the means to take Tom to court to alter the original agreement to get what she wants. Because she has full custody I believe that she can also move wherever she wants, and it is just tough for Tom that he has to figure out how to get there to see his kids.

Our WATNA: As mentioned above, Tom’s worst alternative is that Jane is moving away and the law provides him no recourse. Basically that it says he CAN see his kids on those arrange days and times, but not that it has to be easily accommodated for him (i.e. she can move away out of his reach and that’s just his problem).

Their WATNA: That Jane pisses Tom off so much that he takes her to court to get custody and has some good reason to be able to win. Tom could also poison the kids against Jane, which would be a bad idea, but it could be something that would make Jane move on her position. (Just pointing out that if there is a position then it’s a bad idea, and I would also never encourage anyone to EVER make children part of a negotiation tactic!)

No Deal: It is uncertain who has more to lose if there is no deal because we don’t know what Jane wants. She might really need something that would be a problem if they can’t come to an agreement.

Court: If this went to court then Jane stands to be in the best position because she likely has the money (or at least more of it) to be able to pursue adequate council.

Jury: Jane stands the chance of angering jurors depending on what her case is. Tom has a pity case, and she already got what she wanted once.

Want to Know: I want to know what has caused Jane to request this meeting, and what is really behind it. Whatever she wants doesn’t necessarily speak to the reason behind it. That reason might be the key to mutual beneficial arrangements, or at least to bettering Tom’s negotiation points.

Confidential Facts: I want to protect the fact that Tom is thinking about moving in with Sandy, and probably that she’s so interested in a relationship with the children. Jane is likely not going to take well to the entrance of a second mommy in this relationship.


  1. Reach a settlement?
  2. Yes

  3. Terms
  4. The kids are with their father every other week (except for Mondays when their mom isn’t working) and every weekend during the day (returning to their mother at 5pm after she gets off work). They each have the option to arrange for additional time when there are events that might require a different schedule. They alternate every 3 weeks in the summer. Tom recoups $500 a month from the child support/alimony and with that moves back into town so he can be closer to the kids, and so they may attend the same school while juggling households. Jane also pitches in for Tom’s activities with the kids reimbursing expenditures (like going to the zoo, movies, etc). Jane would prefer that Sandy is “proven” before she is heavily involved in the kids lives, Tom won’t be moving in with Sandy. They’ll revisit joint custody in 1 month, and as long as the kids are happy with the arrangements of the past month then Jane will grant joint custody (this agreement is in writing).

  5. Keep secret, if not what did you disclose? How/Why?
  6. I kept all my secrets, though I did acknowledge the relationship with Sandy when she mentioned it.

  7. Did you learn anything about the other side that would change your estimation?
  8. No, I was “waiting for the other shoe to drop” but it never happened. I thought there would be more to it than there was.

  9. What was most important for OTHER side, distributive/integrative?
  10. Integrative issues.

  11. If integrative, which ones?
  12. She was most concerned with what was best for the children, which included keeping them from bad influences.

  13. What was most important for YOUR side, distributive/integrative?
  14. Integrative

  15. If integrative, which ones?
  16. I just wanted to be able to see the kids more often and then secondly to hopefully be able to move closer.

  17. What did you learn about yourself as a negotiator?
  18. I just kept waiting for something else other than just that she wanted to take this new job. I thought there would be a catch or something. I realize looking at this negotiation that my previous negotiation (where I was blatantly lied to) made me have my guard up and to be, perhaps overly, suspicious. What I learned is that you can’t really taken lessons learned from each negotiation and simply carry them forward. It’s like trying to over correct or over compensate while driving under less than perfect circumstances. I think slow and steady wins the race, or in this case an even and fair temperament in each negotiation… walking into it without prejudices about how the other might behave or what they might have up their sleeve.

  19. Is there anything you will try to do differently based on this negotiation experience?
  20. Well I basically outlined it above. Looking back over the past several negotiations there has been something learned from each which I carry forward. However in each subsequent negotiation there is a tiny tendency to over correct. I might not have noticed it except for the fact that I was on guard from being lied to in the previous negotiation, and the “girls” seemed to be rather brutal when jesting before class. It made me cautious and suspicious. I was congenial in our negotiation but I couldn’t shake my fears and was waiting for the ‘catch’. In the end I was shocked to find out that I didn’t lose out on any big sum of money or any other important components to the negotiation. It was pretty fair and square. This motivated my desire to learn lessons but not to be hypersensitive in applying them in the subsequent negotiations.

    Both Maria and I came from families who had never experienced divorce or any of its effects, so we didn’t experience the kind of emotion that might have clouded the negotiation as we were prepared to deal with. I think it would have been nice to be able to practice under those conditions because inevitably that is my downfall (negotiating under emotional conditions). I get caught up in my “position” and need to step back.


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