4 Dilemmas in Family Court
4 Dilemmas in Family Court © 2012 By Bill Eddy, LCSW, Esq. I am writing this in response to a blog comment which raises some important concerns about family decision-making in family court, which are raised worldwide and not unique to any one state or province. Here are the dilemmas that I see in addressing your concerns: Should there be a presumption that all parents are equal? As you suggested, I agree with you that is a dangerous presumption, because there ARE parents who should have restrictions for their parenting. (See my 5-part blog article last month.) Should all parents be expected to negotiate their parenting plans? With protections in place (such as not requiring parents to be in the same room or having them arrive and leave separately), I believe that it is a good idea to expect all parents to ATTEMPT negotiations. With an abusive, lying or alienating parent, this may not result in a settlement and should get more thorough attention and assistance from professionals (see my suggestions below). Is the parent who says he or she is the protective parent always right? I have seen cases (1) where the person who said they were being the protective parent prevailed and that parent was in fact the most protective parent. However, I have also seen cases (2) in which the opposite was the case – the person who claimed he or she was the protective parent was in fact an abusive parent in denial about their own behavior. I have also seen cases (3) in which both parents were blaming the other and neither was protective of the child because they were both lacking significantly in needed parenting skills. So this is the core dilemma of family court: How do you tell which parent is abusive, lying or alienating, when they both say it’s the other parent. In my mind, all three theories that I just mentioned need to be evaluated. Are family court judges making good or bad decisions when they disagree with experts? This is a similar dilemma, because I have been involved in cases in which the experts were more accurate and in cases in which the experts had become emotionally too involved and were less accurate than the judge, and cases in which I believed the experts and the judge were inaccurate – fortunately, these cases are a small minority of cases and some have even been corrected over time. For the above reasons, I am trying to educate judges, lawyers and mental health professionals about high-conflict behavior and personalities. I have recently written a little book about this titled: The Future of Family Court, in which I have two suggestions for family courts to deal with these dilemmas: A. Provide a stronger court-ordered structure for parents in conflict to learn skills to help them communicate, negotiate and make decisions, while still having protective orders in place when needed. The example I give is the New Ways for Families® program of short-term counseling or education. This fits the reality that even abusive parents almost always get parenting time and a lot of it unsupervised (I’m not saying I agree with that, but it is generally true in most courts because of the dilemmas above). So it’s better to provide skills that may reduce these abusive, lying and alienating behaviors as much as possible, while helping parents learn skills to pass on to their children. But this doesn’t mean that all parenting conflicts will be settled or should be settled. B. Provide more scientific analysis of behavior patterns in the cases that don’t settle. I have suggested a method of organizing and viewing behavior information called HCI Pattern Analysis, which I describe in the book. The focus in these cases should be on health and safety for the child, rather than simply guessing at who is the better parent. These are serious concerns, so I also recommend more intensive training for judges about mental health issues. In short, I believe that family courts should assist most parents in making their own decisions, rather than escalating family conflict by using the adversarial process to decide parenting schedules for two sufficiently fit parents. For those parents who don’t fit this category, in which there are health and safety issues, the courts should become more skilled and spend more time on these cases. BILL EDDY, LCSW, ESQ. is the co-founder and Innovation Director of the High Conflict Institute in San Diego, California. He pioneered the High Conflict Personality Theory (HCP) and is viewed globally as the leading expert on managing disputes involving people with high-conflict personalities. He has written more than twenty books on the topic, developed methods for managing high-conflict disputes, and has taught professionals in the U.S. and more than ten countries. He is also co-host of the popular podcast, It’s All Your Fault, and writes a popular blog on Psychology Today.
Conclusion on a Shared Parenting Presumption
© 2012 By Bill Eddy, LCSW, Esq. Legislating Shared Parenting All states and provinces currently mandate significant parenting time for both parents, unless there are compelling reasons (domestic violence, child abuse, etc.) not to do so. It is universally seen as in “the best interests of the child.” However, mandating percentages of time has been avoided, as children and parenting are too complex to resolve with a calculator, the way that child support can be done. Yet several states and provinces have strong movements desiring mandated shared parenting. While I understand this, as described above, and have clients who are part of such movements, I think that such a mandate will not accomplish its desired goals and will be overturned within a few years of its establishment – because it is too large of an intervention for a problem that is not as widespread as it feels. For example, in the Australian study of parenting plans developed in court-mandated mediation in which the parents were required to “actively consider equal or substantively shared parenting,” the research showed that shared parenting plans (35-65% or higher) didn’t last more than a year, whereas primary parenting plans (less than 35-65%) were more stable. Primary parenting plan mediated, still in place 49% Shared parenting plan mediated, but now primary 28% Shared parenting plan mediated, still in place 17% Primary parenting plan mediated, but now shared 6% In the United States, Canada and Australia, the vast majority of separated and divorced parents (approximately 80% or more) reach agreements for parenting on their own, out of court, which is always preferable to a court imposed parenting plan. They don’t need a new mandate. While some parents – especially fathers – would like to have more time, they have reached agreements that appear to fit the reality of their lives, which includes much more time than their fathers had with their children. The fathers’ rights movement dates back to the 1980’s, when partly due to its efforts the courts shifted to standards that no longer gave mothers automatic priority but instead considered “the best interests of the child.” Since then, fathers have dramatically increased their involvement in their children’s lives. Many more have become the primary parent than ever before, and many have had equal shared parenting for some periods of their children’s lives. The majority of parents who bring their parenting disputes to family court have also been satisfied enough to accept the outcome, although not always happily. I have represented mothers who lost custody and I have represented fathers who won custody. So I know that it is not exclusively a fathers’ rights issue, although that is how it may appear to the public. Nowadays, in court, mothers are getting less time with the children than they did in the past and fathers are getting more. In my almost 20 years as a family law attorney in California, we are much closer to gender neutrality than ever before. Even when court orders are made, as I explained above, these court orders are not always followed and the parents end up doing some other arrangement anyway on their own – for better or for worse. While some parents may give up on the one hand or grab more time than the order says on the other hand, I don’t believe that mandated shared parenting orders will make much of a difference to them, since their court orders are already not being followed. There is a small percentage of people who have been to family court about parenting issues and were highly dissatisfied. This includes some people who have been wronged by the court system because they had one of the worst attorneys, evaluators or judges (yes, there are some of each, but fortunately a small percentage – as in all fields). They are sincerely trying to make things better and see a shared parenting mandate as a solution. Unfortunately, it is a universal solution applied to a narrow problem for a few. Our legal system is an incredibly flexible system and I believe a more effective approach would be to educate the courts and the public on their specific problems. Unethical attorneys can be disbarred. Unethical evaluators can have complaints filed. Unethical judges can be relieved of their duties. This does happen. The other group of people who are highly dissatisfied includes those parents whose own bad behavior was exposed and decisions were made because of that – yet they are unable to see it. Some of these people have high-conflict personalities and blame others for everything to unconsciously deflect from their own behavior. Such high-conflict people will not be satisfied regardless of what happens. For them the “issue’s not the issue,” their personality is the issue.” They will always find a new issue and see others at fault. Instead of solving a widespread problem, legislating a mandate for shared parenting with a percentage attached will create a widespread problem. Just as many people refinance their mortgages when rates are lowered, I believe that many parents with existing custody and access orders will return to court to change them if such a mandate goes through. Rather than creating less litigation, it will create more. One Size Fits All Family Court Solution? I also know that when “one size fits all” solutions are applied legislatively to the courts, that they sometimes end up getting overturned. In California we had the 3 Strikes law for criminals, which was supposed to solve the “problem” of judges using too much discretion in making sentencing orders. However, a few years later it had to be changed to allow judges more discretion again. Judges are not a major problem – in family law or elsewhere. (Of course there are a few individual exceptions, as in all professions, and there are procedures to remove them.) Family court is not broken – it is just facing mental health problems among litigants that it is just now starting to learn how to handle. Yes,
Alienation Update
© 2012 By Bill Eddy, LCSW, Esq. Several years ago I wrote an article on Calming the Alienation Debate, which later evolved into my book titled Don’t Alienate the Kids! Raising Resilient Children While Avoiding High Conflict Divorce. Now, it seems that the debate is just about over. Child alienation, also known as Parental Alienation or Parental Alienation Syndrome, estrangement or visitation refusal, has become widely accepted as a real problem – especially as it seems to be happening to mothers just as much as fathers these days. When a child resists or refuses contact with one of his or her parents during and after the separation/divorce, there is a serious problem. The debate for the past 25 years has focused on: Who is to blame for this abnormal behavior? Families often get caught up for months or years in a legal battle over who has been “alienating” the child and how to pry the child away from this bad (but “favored”) parent. In the process, children become even more alienated and most professionals and parents eventually give up trying to change the child’s rigid thinking. It seems pretty clear now that the “cure” of evaluations and litigation to determine who is the better parent and who is the bad parent often makes things worse. After analyzing this problem as a social worker and as a family law attorney, I am as convinced as ever of several things: Alienation is not a gender issue now, if it ever was. It affects mothers almost as much as fathers. It is often a reflection of one or both parents with a personality disorder, which includes a lot of all-or-nothing thinking, such as believing that one parent is “all-good” and the other is “all-bad.” Resistance to contact with a parent is not a typical symptom of abuse – in fact, most abused children love their abusive parent and are also afraid to resist them. Healthy parents should not give up and accept a child’s resistance helplessly. While it may be appropriate to back off at times, it is important for the child to know that this is an unhealthy behavior and that the healthy parent wants to help the child learn healthy ways of dealing with relationship problems. One of the best things that a “rejected” parent can do, if this parent still has regular contact, is to teach their child lessons for life – including flexible thinking, managed emotions and moderate behaviors. These lessons can be taught in casual conversations about movies, friends, neighbors and other family members. There is no need to single out the other parent as acting inappropriately – instead teach the lessons of appropriate behavior and let the child make the connection that the other parent is acting inappropriately. This avoids bad-mouthing the other parent – and reinforces life lessons the child really needs to learn to succeed. Courts need to take stronger action earlier in cases to insist that both parents will be involved with the child, although protective orders can still be made when necessary – while not taking a blaming approach, but more of an educational approach. Now, the question is: What can be done? This is a healthier question than who is to blame. Ideally, the family will be treated as a family and have one or more therapists involved who take the same approach and do not focus on blame or “reunification” between the alienated parent and the child. Any treatment must involve both parents and require the parents to support each other’s relationship with the child, even if the other parent has engaged in some bad behavior. There can be protections built in rather than eliminating one parent (which only teaches “all-or-nothing” solutions to the child, rather than learning any skills). This is a huge subject and one that is finally getting some progress as the debate subsides. For a more thorough review of this issue, see the comprehensive article titled: Parental Alienation and Children Exhibiting Visitation Refusal Behaviour, by Joseph Goldberg at the website of the Canadian Symposium for Parental Alienation Syndrome: www.CSPAS.ca. While I prefer not to use the term “syndrome” in defining this problem, I believe this article is very helpful in taking a problem-solving focus. For therapists who want to work with such families, I encourage them to read Steve Carter’s book: Family Restructuring Therapy (Unhooked Books, 2011). And of course, for professionals and parents there is our New Ways for Families method and website www.NewWays4Families.com. The problem of alienated children will grow until we all understand it and reinforce teaching children lessons of cooperation, instead of blame, and teaching more effective conflict resolution skills for parents instead of simply criticizing them or labeling them. BILL EDDY is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.