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.
Managing High Conflict People in Court
BEFORE YOU GO TO COURT © 2012 By Bill Eddy, LCSW, ESQ Make Sure You Have Realistic Expectations In Court, the judge or jury will never really know what is going on in your case. The Court’s job is to decide narrow legal issues based on limited permissible evidence. Hearings and trials are mostly short and to the point. In real life, Court is not like most court cases on television or the movies – or even the news. Trials are rare, as most cases are resolved by hearings and/or settlement by agreement of the parties – often with the help of knowledgeable attorneys. Do Not Expect Validation or Vindication The judge or jury does not decide your character as a person – or who has been “all good” or “all bad.” In Court, it is often assumed that both parties have contributed to the problem, and that it is a matter of relative liability for whatever occurred. Today, many courts focus on problem-solving. Interpersonal complaints are often seen as “he said, she said,” and the courts much prefer that these disputes be settled out of court. Avoid Emotional Reasoning When people are upset, our perceptions can be distorted temporarily or permanently. Our emotions may cause us to jump to conclusions, view things as “all or nothing,” take innocent things personally, fill in “facts” that are not really true, unknowingly project our own behavior onto others, and unconsciously “split” people into absolute enemies and unrealistic allies. This happens at times to everyone, so check out your perceptions with others to make sure they have not been distorted by the emotional trauma of the dispute and related events. Many cases get stuck in court for years fighting over who was lying, when instead it was emotional reasoning which could have been avoided from the start. Provide The Court With Useful Information The judge or jury does not know you or your issues, except for the information that is properly submitted to the court. Make sure to provide important information, even if it is embarrassing. The court cannot sense the behavior of each party. If you feel you have been abused by another person, the court needs sufficient information to make helpful decisions. If you hold back on important information, it may appear that abusive incidents never occurred and that you are exaggerating or making knowingly false statements. If you are accused of actions you did not take, the court will not know this information is inaccurate or false unless you sufficiently inform the court. Be Careful About Un-verifiable Information The accuracy of the information you provide to the court is very important. Based solely on what you say in declarations or testimony in court, the judge or jury may make very serious orders regarding the other party, yourself, and your finances. If it later turns out that you made false or reckless statements — even if you were well-intentioned — there may be negative consequences, such as sanctions (financial penalties) or other restrictions in your future actions. A legal history may be a liability in future employment, relationships and court cases. Try To Settle Out-Of-Court Today there are many alternatives to going to court which can be used at any time in your case, including Mediation, Collaborative Law, Arbitration, negotiated agreements with attorneys, and settlement conferences assisted by a settlement judge. The expense for each of these is much less than for court hearings, trials, and prolonged disputes. You have nothing to lose, and you can still go to court afterwards if you do not reach a full agreement. By trying an out-of-court settlement, you can limit animosity and protect yourself and your family from the tension and cost of several months or years in court battles. BILL EDDY, LCSW, ESQ. is the co-founder and Chief Innovation Officer 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.