The Future of Family Court: Pattern Analysis

An excerpt from Bill Eddy’s book The Future of Family Court For those who are unable to resolve their disputes by learning relationship conflict skills, the court will need to make their decisions for them. However, in today’s family court, much of the decision-making, especially regarding parenting, is done by focusing on one or two seemingly extreme behaviors or events – without the context of the person’s pattern of behavior. Based on these isolated behaviors or events, long-term parenting decisions are made which may or may not be in the child’s best interest. Family court judges – especially new judges – are often making a best guess, based on the demeanor of the parties and the strength of arguments.

Unfortunately, in family matters the emotions surrounding these events, and the dramatic arguments made by the parties and/or their counsel, tend to make it harder to discern the truth, rather than easier. The adversarial process may work well with normal people in litigation, but it does not work well with family court litigants with mental health problems that are being exaggerated or minimized for a legal advantage.

People with personality disorders, in particular, can be very convincing and misleading in their courtroom presentation of self. Yet they have recognizable and predictable patterns of behavior that are more obvious than ordinary people, when fully examined.

Some of the most responsible parties can be made to appear incompetent in court by someone with a personality disorder or their negative advocate, as many responsible people do not try to hide or shape their frustration, confusion and doubts. This is particularly true of antisocial domestic violence perpetrators, who can appear very charming and reasonable in court, and their victims, who can be made to look very incompetent and emotionally unappealing in court.

Determining credibility is usually one of the biggest issues in any legal dispute in court. For example, cross examination is considered the engine of the truth. However, when someone with a personality disorder is involved, there are two major problems with credibility:

1)    A personality-disordered person usually believes in their many cognitive distortions (see Managing High Conflict People in Court for more about cognitive distortions). In these cases, trying to assess whether such a person is lying or not totally misses the issue of whether the underlying information is actually true or false. Such a person may be totally honest – and totally wrong.

2)    A personality-disordered person often projects onto the other party bad behavior that is more like their own. The passion with which such a person attacks and criticizes the other party can seem compelling. (“The other party must have done something terrible to have upset this person so much.”) Yet this sincerity may come completely from their cognitive distortions as well. Such a person may seem very credible and sympathetic – and totally wrong.

These two problems of people with personality disorders confound family courts more and more, since their litigated cases often involve disputes over the basic facts, so that judges are tempted to decide the case based primarily on credibility.

Therefore, a new approach to this problem is to have the parties present a pattern analysis of their own behavior and of the other party. This includes showing how often negative behaviors have occurred (just once or on numerous occasions) and what the positive behavior patterns are as well. This assists the court in more truly understanding what is going on for each party, and avoids the preoccupation with one or two dramatic events – which may or may not represent the past pattern of behavior.

For more information on issues faced by Family Court and this new proposed approach, read:

The Future of Family Court: Structure, Skills and Less Stress.

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Bill Eddy is a lawyer, therapist and the Senior Family Mediator at the National Conflict Resolution Center based in San Diego. He has developed methods for training high-conflict parents to make reasonable decisions out of court (New Ways for Families); for training mediators to settle more high-conflict cases out of court (New Ways for Mediation) and for presenting concerning behavior patterns in court when necessary (HCI PatternViewer). He is the author of several books, including: SPLITTING: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder and It's All YOUR Fault: 12 Tips for Managing People Who Blame Others for Everything.