Reducing Polarization in Divorce and Custody Cases: 7 Modest Proposals
Reducing Polarization in Divorce and Custody Cases:7 Modest Proposals © 2024 by Bill Eddy, LCSW, Esq. Divorce and child custody decisions are based on the adversarial process of our state court systems, just like criminal and civil disputes. While this adversarial process was designed to produce fairness, equality, and stability, it can also pull children and parents (and even grandparents) apart into two polarized teams that engage in high conflict behavior from one or both sides. Since the 1980s, some experts have described this as “tribal warfare” (Johnston & Campbell, 1988, xi). For many families, it’s no better now. However, over the past fifty years, many efforts have been made to reduce the negative impact of adversarial decision-making on children and families. By their nature, parents do best when they are united and working together for the benefit of their children. No-fault divorce began in the 1970s and soon spread nationwide. Divorce mediation took off in the 1980s and is now built into many family court systems as the place to start—with a 60-80% success rate of agreements. Joint legal custody of children and shared parenting plans are very common today, with approximately 80% of parents nationwide resolving all of their parenting issues outside of court. Notably, since about the 1990s, many of the remaining cases that end up in family courts become “high conflict” with bitter disputes over domestic violence, child abuse, substance abuse, parental alienation, and false allegations of each of these—which sometimes go on for years. The adversarial process is alive and well in these disputes, and families become more and more entrenched and polarized as these cases go on without satisfactory resolution, with increasing risks of violence and/or permanent loss of parent-child relationships. This article addresses some of the problems and possible solutions for reducing this unnecessary polarization and its impact on children and parents (and often grandparents) and society at large. The Language That’s Used Legal terminology puts a negative spin on the separation and divorce process right from the start. For example, in California the existing required paperwork includes a Petition (signed by the Petitioner) which is filed and “served” on the other party (known as the Respondent). While these terms are better than Plaintiff and Defendant, as used in many other legal cases and jurisdictions, they still imply a highly adversarial process—especially when the Summons that comes with the Petition states that “You have been sued.” Yes, divorce is technically a lawsuit. From the start of the case, almost all divorcing couples are confronted with this language which can unnecessarily trigger many upset and angry individuals into defensive high conflict behavior for weeks or months or years to come. However, the good news is that this is changing in California. Thanks to the recent efforts of some friends of High Conflict Institute, the legislature has voted to institute a Joint Petition option for those who want to stay out of court and try to settle their cases by agreement (Senate Bill 1427, signed into law August 19, 2024, per correspondence with Jeffery S. Jacobson and Jennifer Winestone). While there are some cases that inevitably will end up in court, this change may help some couples keep the peace long enough to resolve their issues by agreement. “Custody” and “visitation” are other terms that often trigger conflict. The idea of having “custody” of a child often triggers some of the worst custody battles, and no one wants to only “visit” their own children. Worldwide there are efforts to replace these words with “parenting time” for each parent. Domestic Violence One of the biggest issues in today’s family courts is domestic violence (also known as intimate partner violence or IPV). Researchers have suggested that up to fifty percent of separating families may have an incident of domestic violence around the time of separation (Sparta & Koocher, 2006, 218). From this writer’s observations and trainings, allegations of domestic violence are common in child custody disputes. This is considered to have as much of an impact on children as direct child abuse and the children usually know about it even if it goes on behind closed doors. Some research has found it to lower children’s verbal abilities and even intelligence (Drozd, et al, 2016, 348). Is it present in a case? Or is someone lying about it to get an advantage? If it is present, how serious is it? How high are the risks of future violence? What type of violence is it? Are restraining orders (also known as protective orders) necessary? Is supervised parenting time necessary? Or no contact at all with the children? Needless to say, this issue triggers a lot of anger and polarization in today’s family courts. Parents accused of domestic violence often deny it or minimize it. While most allegations are true, in some cases, the allegations are false or exaggerated. Figuring out these cases is one of the hardest tasks for judges, and they fear that someone may get seriously injured or killed because their findings in the case were wrong or their orders were inadequate. Usually, both parents—and perhaps many of their family members (remember tribal warfare)—are very upset in these cases, which further clouds determining what is going on. Child Abuse Physical child abuse is one of the easiest parental behaviors to treat. There are many successful programs to help parents stop hitting their children and use more helpful methods of positive and negative consequences. This behavior change can usually occur quickly with parent education or counseling and can be long-lasting. Emotional and verbal child abuse is harder to identify, especially in a separation or divorce, because it is so frequently alleged in high conflict cases, but hard to measure. It can be easily exaggerated or minimized—and it’s almost impossible to control what parents say in their homes. Therefore, there aren’t a lot of polarized cases over these forms of child abuse because there isn’t much the courts will do about it. A common clause in court
Foreword: The High Conflict Co-Parenting Survival Guide
By Bill Eddy, LCSW, Esq. Foreword from The High Conflict Co-Parenting Survival Guide by Megan Hunter and Andrea LaRochelle When I started reading The High-Conflict Co-Parenting Survival Guide, I was reminded of a study of parenting skills that was done several years ago on what makes a good parent.* After studying hundreds of practices and thousands of parents, two psychologists came up with the top three most important parenting skills: Love and affection for your child. Ability to manage your own stress. Demonstrating healthy relationship skills with your co-parent and other adults. These results blew everyone away because they weren’t about managing children’s behavior, which turned out to be much less important than these top three. Yet these make sense because children learn more from your example than what you tell them to do. In other words, you can be strict, permissive or make a lot of mis- takes, and still be a good parent by demonstrating these three skills. And aiming for these skills is especially important when parents have been in a lot of conflict, such as after a separation or divorce. That’s where this handy guide comes in. It focuses on what you can do to manage your own stress and do your part in demonstrating health relationship skills with your co-parent—even with a high-conflict co-parent. Week after week, Andrea and Megan give useful information combined with soothing and upbeat messages of encouragement. Their weekly tips will help you stay calm (and regain your calm), so that you are emotionally available for your child and also showing your child how to cope—by your own success at managing your stress. Their weekly tips will also help you stay (or regain) the positive side while reasonably communicating, making decisions and resolving conflicts with other adults in your life. Just showing your child how well you are surviving this co-parenting business will put them on a good path for life. As the subtitle says, you can Reclaim Your Life One Week at a Time. ______________________________ * Robert Epstein, “What Makes a Good Parent?” Scientific American Mind, November/December 2010. 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.
New Ways Parent-Child Talk: What to say to your children during this time of transition
New Ways Parent-Child Talk: What to say to your children during this time of transition ©2017 Bill Eddy, LCSW, Esq. When parents separate, having a talk with your children that includes some or all of the following may be helpful (presented in age-appropriate terms). You can say this separately or jointly to your children. It helps if you agree on when you are going to say this to them, and what details you have agreed upon to tell them. For example: parenting schedule, how you will communicate, and how decisions will be made. 1. New ways in different houses We’re going to be organizing our family in new ways from now on. Your mother/father and I are going to be living in different houses and bringing new people into our lives. While we are separating or getting a divorce, we are not separating from you. We will both do everything we can to keep our relationships with you loving and strong. You deserve the best from both of us. 2. Positive ways with each other We’re going to try to act in positive ways with each other. We’re going to encourage you to have a strong relationship with both of us. We’re going to avoid comparing ourselves to each other, by saying one of your parents is a better person than the other. We both have made mistakes and I am working on myself to be a better person in my life. And we both have strengths that you can learn from, and I will remind you of your mothers’/father’s strengths in case you forget occasionally. 3. Avoiding extreme behaviors As we organize your family in new ways, we are going to try to avoid extreme behaviors by using moderate behaviors, because families are hurt by extreme behaviors. If your mother/father does something extreme, I am still going to try to use moderate behaviors. Because one extreme behavior does not deserve another. (Then go on to give examples of what moderate behavior is). 4. Managing our emotions I am going to try to manage my own emotions as we go through this separation or divorce. You are not responsible for the separation or divorce, and you are not responsible for my feelings. I alone am responsible for how I manage my emotions and for protecting you from my most intense emotions. This will be a hard time and I will not be perfect. 5. Emotions can be contagious I understand that emotions can be contagious, so I will try to reassure you that you do not have to have my emotions. You are a separate person and will have your own emotions about this separation or divorce. You should always feel free to talk about your feelings with me and I will respect your feelings, even when they are different from mine. The most important thing is that I will try to do my best to let you continue to be a child while I continue to be a parent. 6. Flexible thinking I am going to use flexible thinking in handling our separation or divorce. This means that you can approach me with any ideas about what you and I can do together, and about the new ways our family will be operating. But remember that your mother/father and I will be doing the decision-making. This means I will try to solve problems without getting stuck in all-or-nothing thinking where I only see one solution. There are many ways to make our lives work well together and I will be open-minded. 7. Rules in both houses There will still be rules in each of our houses, even though some of the rules will be different. We both expect you to follow the other parent’s rules when you are in the other’s house. 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.