A Non-Adversarial Family Court?
© 2016 Bill Eddy, LCSW, Esq.
Last month, Bill Eddy wrote a letter with recommendations for the Commission on the Future of California’s Court System. Here is what he wrote: Dear Futures Commission:
I have been a family lawyer for 23 years in California (a Certified Family Law Specialist). Prior to that I was a Licensed Clinical Social Worker for 12 years working with children and families in psychiatric hospitals and outpatient clinics. I am the President of the High Conflict Institute, based in San Diego, which develops methods for managing high-conflict personalities and their disputes. I am also on the faculty of the National Judicial College and I have given several statewide trainings to California judges, as well as those in several other countries. I am currently working with the California Center for Judicial Education & Research on a training video for judges. I am also the author of several books on high-conflict families, including Managing High Conflict People in Court (2008) and The Future of Family Court: Structure, Skills and Less Stress (2012). For more information see www.HighConflictInstitute.com.
UNDERSTANDING THE PROBLEM
I encourage you to consider making California a leader in making bold reforms to the Family Court process, not just faster or more uniform court procedures. The focus of these reforms needs to be creating a non-adversarial family court process for the significant number of today’s parents who appear in family court with mental health problems, especially personality disorders. These disorders have frequently-hidden patterns of interpersonal dysfunction which terrorizes their children, seriously impacts their brain development, harms their ability to grow up as healthy adults and often results in developing personality disorders in generation after generation.
As personality disorders are now approximately 15% of the United States population (see DSM-5 of the American Psychiatric Association, 2013), we can no longer treat “high-conflict” litigants as healthy people who can make productive use of the adversarial litigation process or make fast decisions on their own. In fact, only approximately 20% of separating and divorcing parents ever appear in a courtroom needing judge-made decisions. Perhaps a majority of this 20% have personality disorders, which is why they become high-conflict court cases using the majority of the court’s resources. They are stuck in conflict because of their personalities, not because of legal issues.
While numerous positive alternatives have been developed to assist parents out of court (mediation, parent education classes, minor’s counsel, parenting coordinators, etc.), significant numbers of these “high-conflict” parents end up in courtrooms because of their ongoing misbehavior and misperceptions. Family law courtrooms now spend most of their time on behavior problems rather than legal disputes: substance abuse, domestic violence, child abuse, child alienation, hiding money, hiding children, and false allegations of these behaviors (some honestly believed and others knowingly false).
Here’s why a non-adversarial court process is needed for personality-disordered parents who cannot make decisions on their own or fail in today’s settlement options in the shadow of court:
The adversarial procedures of the courtroom significantly increase their mental distress and defensiveness
The impact of this stress and dysfunction on their children increases during the litigation process and decreases their ability to parent their children in a positive manner for months or years.
The adversarial process reduces their ability to provide useful information to the court, because of their many cognitive distortions and preoccupation with blaming others.
These cases generally include three scenarios which are indistinguishable on the surface when Parent A says Parent B is behaving badly:
(A) It’s true: Parent B is acting badly (DV, alienation, etc.); Parent A is being reasonable, accurate and protective.
(B) It’s not true: Parent B is not acting badly and is being reasonable, accurate and protective; Parent A is actually acting badly, possibly “projecting” their own dysfunction.
(C) Both Parent A and Parent B are behaving badly.
Judges have little time and little training for figuring out these scenarios, and these parties’ misperceptions (and often their counsel) cloud the issues further rather than shedding light on them.
They don’t follow the court’s orders anyway. Instead, they either return to court for enforcement orders, or ignore the orders, or give up – which allows the more dysfunctional parent to prevail.
MANDATING PARENT SKILLS TRAINING (NOT JUST EDUCATION)
Despite their disorders and distortions, many people with personality disorders can learn small self-management skills when presented in small steps with lots of repetition and encouragement. Recent methods of treating personality disorders have shifted to skills-focused approaches, including Dialectical Behavior Therapy for borderline personality disorder and other Cognitive-Behavioral therapies. This is quite different from “education,” which has little impact on personality disorders. There are many parent education classes today which are excellent – for the 80% of parents without personality disorders or other mental health problems. However, people with personality disorders and other mental health problems need a skills-focused approach, in small steps with lots of repetition and encouragement.
New Ways for Families® is one such skills-training method specifically designed for potentially personality-disordered parents. It is being used in several family court jurisdictions in Canada and the United States. While this skills-training method was originally designed as a counseling method in San Diego, it is now available as a 12-session online course. Orange County Family Court judges have routinely ordered over 500 parents to take the online course near the beginning of the case (“Parenting Without Conflict”) and we have been told by court staff that the judges have seen “tremendous change” in parents who have taken it. Plus, the parents like the skills and use them in the future parenting of their children.
In Canada, two Family Court systems have provided and studied the New Ways for Families counseling method for three years, and one found that nearly 80% of their potentially high-conflict families have been able to settle their cases out of court after learning the skills before the big decisions are made. Of course, court orders are needed for parents to participate, as potentially personality-disordered parents do not volunteer for methods that help them. This is similar to alcoholics and addicts who do not volunteer for treatment – they must have consequences, such as mandated programs after drunk driving arrests. This is how a non-adversarial approach by the court can actually help these parents, rather than miring them in adversarial procedures which simply reinforce and increase their dysfunction. New Ways for Families (whether the counseling model or online model) is always ordered for both parents, which removes the adversarial contest as parents and addresses many of the true parenting behavior issues which are “family systems” issues, rather than individual issues.
KNOWLEDGEABLE PATTERN ANALYSIS AND PARENTING PLANS
If approaches such as the above skills training method is used, then only about 20% of those parents coming into today’s courtrooms should need a judge to make their decisions. For this 20%, judges and other professionals need to have much more knowledge and skills training of their own about personality disorders and other mental disorders, so that they can understand behavior problems and make truly useful court orders. As it stands today, judges have to guess about problems which are often well-hidden beneath the surface. With personality disorders, there is a significant risk of getting the case backwards because of their frequent “projection” of their own problems onto other people. Also, many of these cases have two equally dysfunctional parents who both need treatment, self-management skills and more structure in their lives. While judges can order psychological evaluations, many cases cannot afford them and even psychologists can get emotionally “hooked” in cases with one or more personality disorders.
Unfortunately, the information from the parties is often useless, distracting and/or false. Therefore, instead of an adversarial process of mostly argument, judges need to know some of the questions to ask the parties – especially since so many are self-represented – before making orders at an emergency hearing or even a 20 minute Request For Orders hearing. Many cases are made worse at these early brief hearings, when a slightly-more-knowledgeable judge could have asked some key questions.
With fewer cases actually coming to court, it may be possible to have judges actually spend the time asking both parties about the patterns of their behavior to obtain a good pattern analysis of the case. I explain this process more thoroughly in my book The Future of Family Court if you are interested (see top of page). More training is the key! Even a day or two could make a difference.
For the sake of California’s children and future citizens, bold moves are required beyond simply adding faster court procedures or more professionals to make decisions for the parties. California has been a leader in reducing the adversarial process of Family Courts by being the first state to adopt “no-fault” divorce in the 1970’s and by being the first state to adopt Family Court Services Mediation in the 1980’s. It’s time to reduce further the adversarial process of family courts, by engaging the parties themselves in learning more skills and by providing time to train the judges in what is really going on in their courtrooms today.
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.