(a) The court shall not order a dispute resolution process, except court action, if the court:
(1) Finds that any limiting factor under § 36-6-412 applies;
(2) Finds that either parent is unable to afford the cost of the proposed dispute resolution process, unless such cost is waived or subsidized by the state; or
(3) Preempts such process upon motion of either party for just cause.
(b) If an order of protection issued in or recognized by this state is in effect or if there is a court finding of domestic abuse or criminal conviction involving domestic abuse within the marriage which is the subject of the proceeding for divorce or separate support and maintenance, the court may order mediation or refer the parties to mediation only if:
(1) Mediation is agreed to by the victim of the alleged domestic or family violence;
(2) Mediation is provided by a certified mediator who is trained in domestic and family violence in a specialized manner that protects the safety of the victim; and
(3) The victim is permitted to have in attendance at mediation a supporting person of his or her choice, including, but not limited to, an attorney or advocate. The other party may also have in attendance at mediation a supporting person of his or her choice, including, but not limited to, an attorney or advocate.
(c) If a dispute resolution process is not precluded or limited, then in designating such a process the court shall consider all relevant factors, including:
(1) Differences between the parents that would substantially inhibit their effective participation in any designated process;
(2) The parents' wishes or agreements and, if the parents have entered into agreements, whether the agreements were made knowingly and voluntarily; and
(3) The financial circumstances of the parties to pay for alternative dispute resolution processes where court sanctioned alternative dispute resolution programs are unavailable.
(d)(1) The court shall approve agreements of the parties allocating
decision-making authority, or specifying rules in the areas listed in §
36-6-411, if it finds that:
(A) The agreement is consistent with any limitations on a parent's
decision-making authority mandated by § 36-6-412;
(B) The agreement is knowing and voluntary; and
(C) The agreement is in the best interest of the child and is
agreed to by the guardian ad litem, if one has been appointed by the court.
(2) The court may consider a parent's refusal, without just cause, to attend a court ordered parental educational seminar in making an award of sole decision-making authority to the other parent. The court shall order sole decision making to one parent when it finds that:
(A) A limitation on the other parent's decision-making authority
is mandated by § 36-6-412;
(B) Both parents are opposed to mutual decision making;
or
(C) One (1) parent is opposed to mutual decision making, and
such opposition is reasonable in light of the parties' inability to satisfy
the criteria for mutual decision-making authority.
(3) Except as provided in subdivisions (d)(1) and (2), the court shall consider the following criteria in allocating decision-making authority:
(A) The existence of a limitation under §
36-6-412;
(B) The history of participation of each parent in decision making
in each of the following areas: physical care, emotional stability,
intellectual and moral development, health, education, extracurricular
activities, and religion; and whether each parent attended a court
ordered parent education seminar;
(C) Whether the parents have demonstrated the ability and desire
to cooperate with one another in decision making regarding the child in
each of the following areas: physical care, emotional stability,
intellectual and moral development, health, education, extracurricular
activities, and religion; and
(D) The parents' geographic proximity to one another, to the
extent that it affects their ability to make timely mutual decisions.
(e)(1) The court shall make residential provisions for each child, consistent with the child's developmental level and the family's social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child's residential schedule shall be consistent with § 36-6-411. If the limitations of § 36-6-412 are not dispositive of the child's residential schedule, the court shall consider the following factors:
(A) The parent's ability to instruct, inspire, and encourage the
child to prepare for a life of service, and to compete successfully in
the society which the child faces as an adult;
(B) The relative strength, nature, and stability of the child's
relationship with each parent, including whether a parent has taken greater
responsibility for performing parenting responsibilities relating to the
daily needs of the child;
(C) Each parent's past and potential for future performance of
parenting responsibilities, including the willingness and ability of each
of the parents to facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent, consistent with the
best interests of the child;
(D) Willful refusal to attend a court-ordered parent education
seminar may be considered by the court as evidence of that parent' s lack
of good faith in these proceedings;
(E) The disposition of each parent to provide the child with
food, clothing, medical care, education and other necessary care and the
degree to which a parent has been the primary caregiver;
(F) The love, affection, and emotional ties existing between
each parent and the child;
(G) The emotional needs and developmental level of the child;
(H) The character and physical and emotional fitness of each
parent as it relates to his or her ability to parent or the welfare of
the child;
(I) The child's interaction and interrelationships with siblings
and with significant adults, as well as the child's involvement with his
or her physical surroundings, school, or other significant activities;
(J) The importance of continuity in the child's life and the
length of time the child has lived in a stable, satisfactory environment;
(K) Evidence of physical or emotional abuse to the child, to
the other parent or to any other person; and
(L) The character and behavior of any other person who resides
in or frequents the home of a parent and such person's interactions with
the child;
(M) The reasonable preference of the child if twelve (12) years
of age or older. The court may hear the preference of a younger child
upon request. The preference of older children should normally be
given greater weight than those of younger children; and
(N) Each parent's employment schedule, and the court may make
accommodations consistent with those schedules;
(2) The court may order that a child alternate his or her residence between the households of the parents for substantially equal intervals of time only if the court finds the following:
(A) No limitation exists under §
36-6-412; and
(B) The parties have agreed to such provisions, and the agreement
was knowingly and voluntarily entered into; and
(C) The provisions are in the best interests of the child.
Added by 1997 Pub.Acts, c. 557, § 1, eff. July 1, 1997.