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 (www.NewWays4Families.com). 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.
Best wishes, Bill
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.