~ Preface ~
As with many traditional children’s fables, the Story of the Three Bears has been distorted and altered over the course of many years. The distortion was not intentional but occurred as a natural consequence of multiple translations, oral retelling, and the passage of time. In real life, Goldilocks was neither the focal point nor leading actress, but a bit player with no speaking role and little impact on what transpired. The focal point of the real story is the smallest bear of them all. Herewith, dear reader is the real, authentic story of the three bears as played out daily in Tennessee Juvenile Courts by many young, never-married parents.
Chuck Hill and Mary Ruth Shell
Bears, Instinct, & State Law
Mediating a Shared Parenting Agreement
Chuck Hill and Mary Ruth Shell
Once upon a time there was a Mama Bear and a Papa Bear. They enjoyed some great times together and snuggled up on more than a few occasions. After a while, Papa Bear went about his business picking berries, raiding honeycombs, terrorizing campsites, and hanging out with his buddies. Meanwhile, back at the cave, Mama Bear found herself in the family way. When she told Papa Bear that a little cub was soon to join them, Papa Bear more or less disappeared back in the woods and for reasons no one really understood, didn’t go around much anymore.
When Cubbie got old enough to walk on his own and say a few cute words, Papa Bear occasionally dropped by and asked if little Cubbie could come out and play. Mama Bear, thinking about how Papa hadn’t sent any diapers, any honey or cub formula, and hadn’t bothered to come ‘round – usually said “No.” In fact, the last time Papa Bear dropped by the cave, Mama Bear was tired and in a bad mood from lack of sleep. Little Cubbie had had colic during her hibernation, and hibernation lasts four to five weeks, so Mama Bear hadn’t slept in a whole month! She thought about how Cubbie ran and hid behind her on the few occasions Papa did come by and decided that Cubbie really didn’t know Papa Bear and she was not comfortable leaving Cubbie with him. Besides, although Papa Bear had somehow managed to acquire flashy new rims for his pre-owned buckboard wagon, he didn’t even have a car seat! Her instincts told her she needed to protect Cubbie until he got older and could handle being away from her better.
So she mostly said “No” when Papa Bear would ask to take Cubbie out, and “absolutely NOT” whenever Papa proposed to take Cubbie overnight.
A wise old owl up in a tree observed all of this and told Papa that it seemed to him Mama Bear was holding Cubbie hostage for reasons state law would not allow. In the eyes of the law, said the owl, visitation and cub support are treated as separate issues. Mama Bear is not allowed to keep him from seeing Cubbie because Papa hadn’t paid cub support. If Papa Bear went down to the courthouse and looked for a dude in a long black robe, that dude would say that Papa has a legal right to see little Cubbie and would rule in Papa Bear’s favor, the owl was sure of it!
So one day Mama and Papa jumped into Papa Bear’s buckboard with the flashy rims and trundled into town and down to the courthouse. Sure enough, the judge said Papa Bear could have Cubbie every other weekend and he even gave them both some papers that said so!
Afterward, the judge went home and enjoyed a martini with his wife. Papa Bear folded up the papers the judge gave him and went back to the woods. Mama Bear put her papers in her purse and decided she’d figure out what to do with them later back at the cave.
Papa Bear found the old owl, shook his wing feathers, thanked him, and waited for his weekend. It just so happened that on his first scheduled weekend, the Bears were playing the Lions in a very important football game that could put the Bears in the playoffs for the first time in nine years. So Papa Bear liberated a couple of six-packs from a nearby campsite, laced them with honey, and went to watch the game on his buddy’s new, 50-inch flat screen. He figured he’d hook up with Cubbie the following weekend.
The next Friday at 6:00 p.m. just like it said in his papers, Papa Bear arrived at the cave and asked for his weekend with Cubbie. What do you suppose happened?
After visiting the proctologist’s office to dislodge Mama Bear’s papers, Papa Bear had a better understanding of how Mama Bear felt about the judge and his ruling. On his way back to the woods, Papa Bear ran into the owl who apologized profusely and said he forgot to tell Papa Bear that winning a judgment and enforcing it were two very different things. “No, the court wouldn’t send anybody to help Papa Bear get little Cubbie, but they would find Mama Bear in contempt and threaten to put her in jail.” Papa Bear thought about that and concluded that if he were the cause of Mama Bear’s going to jail, he might never see Cubbie again and who knows what she’d do to Papa Bear when she got out!
Just when Papa Bear decided he’d had about enough of the courts, the judge, and state law, the owl told him about something called mediation. The owl said mediation is low risk and works really well when relationships need to be ongoing. He also said it can be used before, during, or after a case has been filed in court. The owl explained that mediators are neither judges nor arbitrators. They act as facilitators helping the parties come to their own solutions, and he said it was successful close to 90% of the time! “And, if it doesn’t work” said the owl, “you can still take your chances in court.”
Since trying to reason with Mama Bear had been so incredibly difficult for Papa Bear, he thought this business of a mediator “facilitating” just might be worth a try…
Papa Bear thought about telling Mama Bear what the owl said about mediation and wondered how Mama Bear might take the information if it came from him. Fortunately, Mama had heard good things about mediation from a friend and was willing to try anything that might help. After all, she really did want Cubbie to have his father in his life.
Papa Bear was surprised to learn that Mama Bear was willing to meet with him and the mediator. Mama Bear was encouraged by Papa Bear’s attitude, maybe he really did want to spend quality time with Cubbie and not just use him as a chick magnet at the park. Besides, Cubbie had been asking about his father.
Earlier in the month, when Mama and Papa had been in court, a lady stood up and talked about mediation. She handed out some cards to the folks in court, but since Papa wasn’t really listening, he didn’t take one. Papa Bear called the court clerk to ask about how they could go to mediation and explained that he didn’t have any money for this. The nice clerk told him that since he and Mama Bear had never been married, the Juvenile Court is where cases like theirs are handled and that court has a program with the local community mediation center. If the Juvenile Court referred the case to mediation, it would not cost Papa and Mama Bear anything. The clerk said she would have someone from the Mediation Center call to set a date and time for mediation.
A mediator called Papa Bear to schedule a time for mediation. She then called Mama Bear to see if the appointment would work for her and asked if it would be possible to have someone look after Cubbie. Mama Bear called Goldilocks who owed her big time for breaking into her home and eating all their food. Goldilocks never expected to be asked back after the fiasco with the porridge, and was thrilled to be able to pay back her debt, help Mama Bear, and spend a little time with cute little Cubbie.
Papa and Mama Bear arrived on time for their mediation. There were two mediators – a woman and a man. Papa and Mama were not expecting male and female co-mediators and immediately felt a bit more comfortable. Each thought to themselves “maybe this will be a fair process; at least they might not try to team up on me.”
They all sat at a table and the mediators explained the process. The mediators told them many of the same things the owl had said and added, they “would not be forced into an agreement, no one would judge them, this was their agreement, and if they decided that the process was not working for them, they could leave at any time. Mediators do not take sides; they do not favor one parent over the other.” The mediators also told them that since they could not give them legal advice, if at any time they felt they needed an attorney, they should contact one. They went on to say “mediation is confidential, meaning anything discussed during the mediation would not be repeated and the mediators could not be called into court to talk about anything said in the mediation. The only exception to confidentiality is that if during the conversation, there is any evidence of abuse to children, the elderly, or handicapped persons, the mediators are required by law to report that. If an agreement is reached, the agreement itself will be sent to the Court.” Papa and Mama signed the Agreement to Mediate, and the mediation began.
The mediators asked to see a picture of Cubbie, and Mama and Papa proudly showed the pictures on their cell phones. One of the mediators talked to them about the importance of focusing on what would be best for Cubbie. If at all possible, Mama and Papa should try to put aside issues with each other, and think about their little cub and his best interests. Mama Bear explained that she really believes having his father in his life would be best for Cubbie. The mediators told them that Cubbie was lucky to have two parents who love him and want to spend time with him.
Mama and Papa were asked to tell the mediators about the plan they currently had for visitation. Mama Bear explained that she has custody and that Cubbie spends almost all of his time with her. One of the mediators said that the law is moving away from the term “custody”, preferring instead to call Mama Bear the Primary Residential Parent and advocating for “shared parenting.” Mama Bear went on to say that Papa was supposed to have Cubbie on alternating weekends, but often Papa didn’t show up or claimed he had other plans. “He missed the very first weekend he was supposed to have Cubbie!” She repeated that while she wants Papa to be a part of Cubbie’s life, she cannot count on Papa to do what he says (she’d seen too many times when he simply didn’t follow through).
She mentioned how Cubbie has begun to ask about Papa and how she’s not going to stand by and watch Papa break little Cubbie’s heart with his trifling irresponsibility. She might agree not to talk bad about Papa in front of Cubbie, but she would definitely NOT agree to any more of Papa Bear’s foolishness and using Cubbie as a chick magnet! “Papa wants to have visitation with Cubbie when it suits him,” and Mama did not think this was fair especially since Papa rarely gave her money for diapers, food, or clothing.
The mediator explained that money/cub support have nothing to do with whether a parent can visit with their cub. Every cub has the right to spend time with and be supported by both parents. These two issues (cub support and visitation) are separate orders of the court and are not contingent upon one another.
Papa Bear was both encouraged and disappointed by what Mama had to say. He was encouraged to learn that Mama really did want him in Cubbie’s life. This was the first time he had heard that and he turned to the mediators and said so. The mediators asked him to speak directly to Mama Bear and tell her what this meant to him. He did, and Mama Bear was visibly moved by what she heard.
Papa went on to say he was disappointed at being called “trifling” and irresponsible, but figured he had some of that coming to him. He was not however going to sit still for Mama’s saying he used Cubbie as a “chick magnet” at the park. Papa explained that while it might be true that he had had a few dalliances with other females, he had never done so in front of Cubbie and it was certainly not true that he ever needed or used Cubbie to attract females. Cubbie is cute and adults find him attractive because of his big bright eyes and sunny disposition, but that is not some planned scheme on Papa’s part, after all Papa was able to attract Mama Bear before Cubbie ever entered the picture so Papa really didn’t need any props to attract females and he would never think of using his own cub for that purpose!
Mama Bear listened to Papa and while she was not totally convinced, she acknowledged to herself that it was true Cubbie is a very cute toddler and it is also true that she herself was attracted to Papa way before Cubbie was conceived. Maybe the “chick magnet” thing was a little over the top but “irresponsible” and “trifling” were on target and she wasn’t about to back away from them. What else can you call someone who spends all that money on fancy wheel rims for his buckboard, but hasn’t managed to get a car seat for Cubbie?
They talked some more and the mediators asked several open-ended questions probing for a clearer picture of how Mama and Papa could shift from the past and focus on how to move forward. They encouraged both Mama and Papa to think about what would work for both of them and not spend their time on what hadn’t worked. In an effort to show that he really wasn’t trifling, Papa Bear volunteered that he would get his own car seat, diapers, and wipes for when Cubbie spent time with him. He mentioned how he had gotten Cubbie a puppy last Christmas, but quickly dropped that matter when Mama told him that while the little dog might be nice for Cubbie, for Mama Bear, it meant no end to extra work, feeding, house breaking, cleaning up after him, and putting up with his barking at all hours of the day and night.
Papa asked the mediators if they thought his volunteering to get a car seat and the other items was evidence that he wasn’t the trifling dude Mama Bear made him out to be. The mediators said that with all due respect, it really didn’t matter what they thought, what matters is what he and Mama Bear think. They then asked him to place himself in Mama Bear’s shoes. Suppose that morning he had taken Cubbie with him to gather berries, buy some beer and get everything ready for hosting the evening poker game with his boys. And, suppose that evening, a few minutes before the game when Mama Bear was scheduled to pick up Cubbie, Mama was a no show. Not only did she not come to get Cubbie, but she didn’t call, text message, or anything, she just NO SHOWED! The mediators asked Papa how he’d feel about that. Papa’s first thought was “what the hell do feelings have to do with this?” But he kept that to himself and thought about the question. After a very long and uncomfortable pause, Papa said in a voice that could barely be heard: “I wouldn’t like it at all.” Someone suggested that since they both had cell phones, that particular problem could be easily fixed.
At that point, Papa Bear asked to meet with the mediators privately. Mama Bear went out into the hallway and Papa Bear explained that the mediators were not getting the whole picture from Mama Bear. “She so worried about the fancy rims on my buckboard, what she need with 16 different pairs of high heel shoes? And how come that little dog don’t bark when Rufus Bear from down at Hickory Hollow goes ‘round to her place?” Papa said he really didn’t want to go into all that and he knows the right thing would be to call Mama when things come up, but he intentionally didn’t do so ‘cause one time when he did, she used the GPS tracking function in the cell phone to locate him. He was at his new girlfriend’s place at the time, “and that caused him a whole lot of really deep doo doo.” And since he and Mama are not married, he didn’t see any reason to have to go through all that. “Look,” he said “I’ve been tracked by angry campers, bees, bee keepers, eagle scouts, hunters, and Park Rangers. I’ve had to run from helicopters, little boys with BB guns, and grown men wearing camouflage and night goggles firing hi-tech bows and arrows while hiding in trees. Been tracked by RV’s, SUV’s, and guys on skis. And now, Mama Bear tracking him? Nope, just ain’t gonna allow myself to be tracked NO MORE!”
The mediators said they understood and asked if they could share what he told them with Mama Bear. He said “you can tell her I don’t want nobody tracking me down, just leave it at that.” They reconvened and Mama Bear made it clear that if he gave her a courtesy call when he couldn’t keep his schedule (and she’d do the same), she really didn’t care what else his phone could or couldn’t do and he could disable the GPS feature for all she cared. “And while you’re at it,” she said, “you can delete that phone book with all those hussies in it!” One of the mediators broke in to remind Mama that their focus was on Cubbie and how to keep both parents in his young life.
They talked about possible visitation schedules. Mama said that Papa was always going out with the boys and that she was home with Cubbie all the time. She said she would like a night out with the girls once in a while. Papa knew that he had been selfish and had left all of Cubbie’s care to Mama. Papa really wanted to bond with Cubbie and teach him how to become a real bear so he said he would cubsit one night each week while Mama went out with the girls. Mama said the girls usually went out on Wednesdays about 6:00 and were home around 10:00. It was agreed that Papa would keep Cubbie while she was gone.
They then talked about the every other weekend that Cubbie was supposed to be spending with Papa. Papa said that sometimes last minute things come up and it doesn’t always work for him to have Cubbie on HIS weekends. The mediators explained that this is Papa’s responsibility, and if he really does want to teach Cubbie how to be a bear, Papa should consider prioritizing his limited time with Cubbie above his other activities. This really made Papa mad because he was accustomed to doing what he wanted when he wanted, and he told this to Mama Bear and the mediators.
The mediators suggested to Papa that upset or not, if his actions showed that Cubbie was important to him, Mama might just come around, see Papa in a better light, and allow him to spend more time with Cubbie. Besides, Cubbie would also see his papa making time for him and that would be a good thing for his training. They would both need a “Plan B” for when truly unavoidable situations came up for either of them.
After more conversation, it was acknowledged that there simply is no substitute for parents communicating with one another. If Papa or Mama had legitimate reasons for changing ‘their’ weekend, they would call the other immediately to discuss the possibility of switching. If the other parent could not switch, then the parent who was scheduled for that weekend would have to take a ‘rain check’ on other things and move caring for Cubbie to the top of their list. By doing so, each could demonstrate to the other that “Cubbie comes first” were not just hollow words.
While talking about the need for communication, Papa said that Mama never told him much about what Cubbie was doing, and that he felt ‘left out’! Had he known about Cubbie having colic during Mama’s last hibernation, Papa would have offered to help out; he knows raising Cubbie can be exhausting. The mediators told them that even in families where both parents live in the same home, communications can be difficult. When parents work all day, one or the other sometimes misses good things too, like their cub’s ‘firsts’. The mediator told them that one of their Parental Bill of Rights is to be able to have “unimpeded telephone conversations with their cub at least twice a week at reasonable times and for reasonable durations.” Mama and Papa talked about this, and decided that Papa could call any time he wanted to talk with Cubbie, and since she has Skype on her phone, if he got Skype, he would also be able to see Cubbie. That made Papa feel a little better, and think “this just might work!” He felt even better when he learned he could get Skype for free!
The mediators suggested that Mama and Papa could take a few minutes during their visitation exchanges to tell each other what Cubbie has been doing and if there are any problems to be aware of. That way, they can begin co-parenting and be on the same page and consistent with discipline, health issues, knowing about homework assignments, etc. It would also make it much more difficult for Cubbie to play one parent against the other as cubs sometimes do as they get a little older. Cubbie would see his parents working together and in the long run it would benefit all of them.
They all went over the decisions they made and the mediators wrote up the Agreement. Mama and Papa signed it, and were each given a copy. They agreed to another appointment in three months to meet with the mediators and discuss how their agreement is working for the family.
Charles (Chuck) Hill and Mary Ruth Shell are TN Rule 31 listed mediators practicing civil and family mediation in the Nashville area and are members of the Board of Directors of the Nashville Conflict Resolution Center where trained, volunteer mediators provide mediation services to both the courts and the community.