Reducing Polarization in Divorce and Custody Cases:
7 Modest Proposals

© 2024 by Bill Eddy, LCSW, Esq.

Divorce and child custody decisions are based on the adversarial process of our state court systems, just like criminal and civil disputes. While this adversarial process was designed to produce fairness, equality, and stability, it can also pull children and parents (and even grandparents) apart into two polarized teams that engage in high conflict behavior from one or both sides. Since the 1980s, some experts have described this as “tribal warfare” (Johnston & Campbell, 1988, xi). For many families, it’s no better now.

However, over the past fifty years, many efforts have been made to reduce the negative impact of adversarial decision-making on children and families. By their nature, parents do best when they are united and working together for the benefit of their children. No-fault divorce began in the 1970s and soon spread nationwide. Divorce mediation took off in the 1980s and is now built into many family court systems as the place to start—with a 60-80% success rate of agreements. Joint legal custody of children and shared parenting plans are very common today, with approximately 80% of parents nationwide resolving all of their parenting issues outside of court.  

Notably, since about the 1990s, many of the remaining cases that end up in family courts become “high conflict” with bitter disputes over domestic violence, child abuse, substance abuse, parental alienation, and false allegations of each of these—which sometimes go on for years. The adversarial process is alive and well in these disputes, and families become more and more entrenched and polarized as these cases go on without satisfactory resolution, with increasing risks of violence and/or permanent loss of parent-child relationships. This article addresses some of the problems and possible solutions for reducing this unnecessary polarization and its impact on children and parents (and often grandparents) and society at large.

The Language That’s Used

Legal terminology puts a negative spin on the separation and divorce process right from the start. For example, in California the existing required paperwork includes a Petition (signed by the Petitioner) which is filed and “served” on the other party (known as the Respondent). While these terms are better than Plaintiff and Defendant, as used in many other legal cases and jurisdictions, they still imply a highly adversarial process—especially when the Summons that comes with the Petition states that “You have been sued.”

Yes, divorce is technically a lawsuit. From the start of the case, almost all divorcing couples are confronted with this language which can unnecessarily trigger many upset and angry individuals into defensive high conflict behavior for weeks or months or years to come. However, the good news is that this is changing in California. Thanks to the recent efforts of some friends of High Conflict Institute, the legislature has voted to institute a Joint Petition option for those who want to stay out of court and try to settle their cases by agreement (Senate Bill 1427, signed into law August 19, 2024, per correspondence with Jeffery S. Jacobson and Jennifer Winestone). While there are some cases that inevitably will end up in court, this change may help some couples keep the peace long enough to resolve their issues by agreement.  

“Custody” and “visitation” are other terms that often trigger conflict. The idea of having “custody” of a child often triggers some of the worst custody battles, and no one wants to only “visit” their own children. Worldwide there are efforts to replace these words with “parenting time” for each parent. 

Domestic Violence

One of the biggest issues in today’s family courts is domestic violence (also known as intimate partner violence or IPV). Researchers have suggested that up to fifty percent of separating families may have an incident of domestic violence around the time of separation (Sparta & Koocher, 2006, 218). From this writer’s observations and trainings, allegations of domestic violence are common in child custody disputes. This is considered to have as much of an impact on children as direct child abuse and the children usually know about it even if it goes on behind closed doors. Some research has found it to lower children’s verbal abilities and even intelligence (Drozd, et al, 2016, 348).

Is it present in a case? Or is someone lying about it to get an advantage? If it is present, how serious is it? How high are the risks of future violence? What type of violence is it? Are restraining orders (also known as protective orders) necessary? Is supervised parenting time necessary? Or no contact at all with the children?

Needless to say, this issue triggers a lot of anger and polarization in today’s family courts. Parents accused of domestic violence often deny it or minimize it. While most allegations are true, in some cases, the allegations are false or exaggerated. Figuring out these cases is one of the hardest tasks for judges, and they fear that someone may get seriously injured or killed because their findings in the case were wrong or their orders were inadequate. Usually, both parents—and perhaps many of their family members (remember tribal warfare)—are very upset in these cases, which further clouds determining what is going on.

Child Abuse

Physical child abuse is one of the easiest parental behaviors to treat. There are many successful programs to help parents stop hitting their children and use more helpful methods of positive and negative consequences. This behavior change can usually occur quickly with parent education or counseling and can be long-lasting.

Emotional and verbal child abuse is harder to identify, especially in a separation or divorce, because it is so frequently alleged in high conflict cases, but hard to measure. It can be easily exaggerated or minimized—and it’s almost impossible to control what parents say in their homes. Therefore, there aren’t a lot of polarized cases over these forms of child abuse because there isn’t much the courts will do about it. A common clause in court orders and out-of-court agreements is: “Neither parent shall make disparaging remarks about the other parent in the presence of the child, nor allow others to do so.” This helps reasonable parents remember to restrain themselves, but parents with high conflict personalities lack such self-control, which can feed the polarization.  

Child sexual abuse allegations can be found in some of the most polarized cases. This is much less common in contested child custody cases, as only about two percent even have these allegations. Are they true? Are they false in order to get an advantage in the case? Perhaps a third to a half or more are false, either honestly believed or knowingly false (Sparta & Koocher, 2006, 130). Yet this is the nuclear bomb of custody disputes and escalates family polarization to the extreme. The absence of useful information from young children (often under five years old) feeds an escalation of polarization.

Alienation

The issue of a child resisting or refusing contact with one of their parents in a separation or divorce has become a significant issue that often ends up in family courts today. “Alienation” is defined generally as when a child resists contact with a parent for reasons that are disproportionate to their actual experience with that parent. In these cases, it has been important for the “rejected” parent and child to spend time together without the influence or comments of the “favored” parent. This sometimes means a change of custody to the rejected parent, who is then able to re-establish their prior loving relationship while there is a temporary no-contact period for the parent with alienating behaviors. 

On the other hand, when a child resists contact because of the rejected parent’s own behavior (due to parental neglect or abuse) then this is termed “estrangement” or “realistic estrangement” (Drozd, et al, 2016, 374-375). In these cases, the rejected parent needs to get treatment for their abusive behavior, such as a 52-week domestic violence treatment group or counseling for child abuse. There may be supervised contact for that parent with the child for some or all of this time.

This issue of resistance or refusal may occur in as many as twenty-five percent of child custody disputes (Webinar, 2023), especially since the pandemic when parents became even more resistant to exchanging their children for parenting time, either out of real fear of Covid or an opportunity to take control. Research indicates that cases mentioning “alienation” in family courts have been dramatically increasing since around 2005, including in Canada, Australia and the United Kingdom (Fidler, et al, 2013, 8).

One of the biggest problems is that alienation and estrangement look the same on the surface, so that they repeatedly end up back in court, with increasingly angry parents—and professionals.

Abuse vs. Alienation

One of the biggest areas of polarization in family law today is that an important percentage of professionals don’t believe in the seriousness of domestic violence or child abuse (“it’s usually exaggerated” they say) and an important percentage of professionals who don’t believe in alienation (“it doesn’t exist,” these others say). The reality is that both exist and that each case needs to be addressed with an open mind to all of these possibilities. Over the past forty years, this writer believes that most family law professionals have come to recognize this reality.

Unfortunately, many professionals are still in these two “camps,” who unnecessarily interpret what is going on their cases to fit their predetermined beliefs—and passionately fight for them without truly looking for the facts. This is called confirmation bias or anchor bias—they confirm what they already believed before looking at the case. While they may be effective as advocates, they are ineffective as objective evaluators and dispassionate dispute resolvers.   

The result is that in some domestic violence or child abuse cases, alienation treatment is applied instead of abuse treatment, by switching custody to a rejected parent who is actually abusive. Some children have died in these cases. In some alienation cases, the rejected parent is often blamed for being abusive despite the lack of evidence of any abusive behavior, and abuse treatment is applied allowing or even ordering no contact between the alienated child and the rejected but healthy parent, which may mean the permanent end of their relationship with that parent and even grandparents into and possibly throughout the child’s adulthood.

Political Involvement

Feeding today’s family law polarization are new laws that have been passed at the federal and state level designed to protect children from abuse, but which disallow consideration of the possibility of alienation. For example, Kayden’s law became part of the federal Violence Against Women Act in 2022, also known as the “Keeping Children Safe from Family Violence Act.” Since state laws govern family courts, this law cannot control states, so instead, it rewards states that change their laws in certain ways to get more federal funding (34 USC §10446(k): Grant increases for States with certain child custody proceeding laws and standards.).

These changes include requiring experts who evaluate cases to be trained and experienced in child abuse and domestic violence but doesn’t mention alienation. Likewise, some of these state laws now require family court judges to be trained in child abuse and domestic violence “only,” indicating that alienation education is not allowed. Furthermore, these state laws must prevent judges from ordering reunification counseling or removing a child from one parent, even temporarily, “in order to improve a deficient relationship with the other parent.” (34 USC 10446(k)(B)(i))

The result is that the relatively settled controversy over whether alienation exists has been unnecessarily re-opened by one “side” of the controversy persuading unsuspecting legislators to protect children by inadvertently helping eliminate a relationship with “the other parent” (and their grandparents, etc.) in a significant number of cases. It is true that there have been some horrific cases of bad decisions that put children in harm’s way. But, the answer is not mandatory ignorance of the family dynamics that drive alienation cases. Instead, education is needed for assessing and treating both abuse and alienation, so that children can be protected from domestic violence and child sexual abuse where it exists in many cases, but also from the loss of a relationship with a healthy parent due to alienation where it exists in many other cases.   

Reducing Polarization

The following are several modest proposals for improving decision-making in divorce and custody disputes.

1. NEGOTIATION FIRST. Require the parties to use mediation, collaborative divorce, or other out-of-court settlement options for all divorce issues before they can bring their cases to court, except when protective orders need to be made. By expecting them to try mediation first, many cases which now start in court could be cleared out of the system to leave more time for the more complex cases. By promoting negotiation first rather than litigation, family polarization is much less likely to become an unnecessary preoccupation for parents, children and other relatives and friends. In other words, when people act like they all belong to the same “tribe” in their decision-making, they are less likely to take up “tribal warfare.”
   
   
2. SKILLS TRAINING. If the parties have difficulty reaching agreements out of court, require them to get training in decision-making skills to help them reach agreements and solve everyday co-parenting problems. Our New Ways for Families® method teaches parents decision-making skills including calming themselves, communicating in a manner that is brief, informative, friendly, and firm (BIFF communications), and making proposals and decisions more effectively on their own. The parties never have to be together while learning these skills, so they can be useful even in cases of abuse or alienation, since parents will eventually be dealing with each other in the future.    
   
   
3. RESPECTFUL COMMUNICATION. In all decision-making, all professionals should speak to the parties with respect and never reach a point when it is justified to demonize one of the parties for abusive or alienating behaviors. This happens all too often in polarized cases and makes things worse. Professionals should understand that much of people’s high conflict behavior is personality based and unconscious, rather than intentional and motivated by financial gain. People with personality disorders have a psychological barrier against having self-awareness of the impact of their own behavior on others. Professionals should avoid trying to give them insight into their own behavior, should avoid opening up their emotions, and avoid focusing on the past, which triggers defensiveness and resistance to change. Instead, professionals should focus clients on the future, their choices, their thinking (rather than emotions), and gaining skills to improve their lives and resolve their disputes.
   
   
4. 3 THEORIES OF THE CASE. In court decision-making, all professionals should keep an open mind and avoid confirmation bias by equally considering at least three theories for any high conflict cases, which always include allegations of bad behavior:

a. The allegations are true and the accused is acting badly.
b. The allegations are not true and the accuser is acting badly.
c. Both parties are significantly acting badly.

5. TRAINING FOR PROFESSIONALS. All family law professionals (lawyers, judges, mediators, therapists) need training in domestic violence, child abuse, substance abuse, alienation, false allegations, and personality disorders. ALL of these, not just one or two areas, which leads to confirmation bias. Since personality disorders can drive abuse, alienation, and false allegations, they need to be much better understood and acknowledged in family court “high conflict” cases. With enough structure and appropriate treatment in many cases, even people with personality disorders can make some progress at reducing anger and polarization and protecting their children. Currently, the adversarial focus on fighting and blaming in family courts prevents behavior change rather than motivating it.
   
   
6. EFFICIENT COURT DECISION-MAKING. The current process of family courts is to have short hearings in which quick decisions can be made. Sometimes, judges have 12-20 such hearings in a day. This works for non-high-conflict families, but (as indicated in Proposals 1 and 2) these families should be mostly moved out of family courts to leave space and time for high conflict families to be truly understood. The existing pattern for high conflict cases is a series of short hearings (mixed in with all the non-high-conflict cases), then possible long hearings/trials (to figure things out), followed by more short hearings (to argue about what was figured out), over a period of months or years. Instead, high conflict cases should be fast-tracked for analysis and treatment. They are not that hard to figure out for unbiased professionals with good training who know the questions to ask. (From this writer’s experience working in psychiatric hospitals, a team of professionals could routinely figure out similar problems in just a few days.) If the focus is on treatment and maintaining (or improving) parent-child relationships, rather than arguing over blame, then families should become less polarized and be more open to an accurate understanding of their problems. The goal should be to help parents rather than to help them fight. The faster these cases can be understood, the less likelihood of alienation or estrangement growing over the months and years that current evaluations and evidentiary hearings typically take. Help people change who can and order appropriate limits with consequences for those who can’t.
   
   
7. AVOID NO-CONTACT ORDERS. In abuse cases and alienation cases, it is common for courts to allow a child to have no contact with one parent or to order no contact. While these are often designed as temporary orders, they often become de facto permanent situations. Kayden’s law now forbids a child to be “removed from a parent,” but allows the other parent to be rejected permanently. If there is estrangement because of a parent’s own abusive behaviors, those behaviors should be worked on while the parent still has some contact with their child, such as with supervised parenting time. If there is alienation because of the favored parent’s badmouthing and interference with the other’s parenting time, then that parent should work on stopping their alienating behaviors while the “other parent” has normal contact with the child. When courts allow a child to completely reject a parent, something is seriously wrong, and the court should not simply accept that by allowing no contact orders. If there is doubt as to whether there is alienation or abuse, then order supervised contact rather than no contact.

Conclusion

These recommendations come from forty years of work with families going through separations and divorce, from the perspective of a family therapist, family lawyer, family mediator, and speaker to judges. They are not polished proposals but rather general principles. Unfortunately, high conflict cases and family polarization continue today after over forty years of “no-fault” divorce laws. The impact on society can be significant, from children not surviving childhood to adults with impaired relationships because of the unnecessary lack of one parent in their lives as they grow up. Whole extended families and sometimes whole communities are impacted by this tribal warfare.

We can do better. We have the knowledge. We just have to stop fighting and start working together. Ultimately, we all belong to the same tribe.

References

Drozd, L., Saini, M., & Olesen, N., eds. (2016). Parenting Plan Evaluations, Second Edition. Oxford University Press.

Fidler, B.J., Bala, N., & Saini, M.A. (2013). Children Who Resist Postseparation Parental Contact. American Psychology-Law Society Series.

Johnston, J. & Campbell, L. (1988). Impasses of divorce: The dynamics and resolution of family conflict. Free Press.

Sparta, S. N. & Koocher, G. P., eds. (2006). “Chapter 10: Evaluating the Effects of Domestic Violence,” Forensic Mental Health Assessment of Children and Adolescents. Oxford University Press.

Webinar: The Resist/Refuse Dynamic: A View from Mental Health Professionals, Bench & Bar, California Lawyers Association, Statement by Dr. Chandler Hoffman, January 30, 2023.

 

BILL EDDY, LCSW, Esq. is a family lawyer, therapist, mediator, and the Co-founder and Chief Innovation Officer of the High Conflict Institute based in San Diego, California. He is a family lawyer, family therapist, and family mediator. He trains professionals worldwide about high conflict personalities and situations, presenting in over 35 states and 13 countries. He is the author of twenty books and manuals, including High Conflict People in Legal Disputes; Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder; and BIFF for Lawyers and Law Offices. He writes a blog for PsychologyToday.com with over 6 million views. He is on the Advisory Board of the Divorce Coalition and co-host of the podcast, It’s All Your Fault! with Megan Hunter, MBA. His website is www.HighConflictInstitute.com.   

His newest book is Our New World of Adult Bullies: How to Spot Them – How to Stop Them, was released in June 2024, and includes several domestic violence examples.