This article proposes some solutions to recent concerns raised by family lawyers, counselors, mediators and judges. How do we protect the children from their parents’ high-conflict behavior in separation and divorce? How do we create a shift from their negative engagement with decision-making to a positive engagement that helps parents help their children – rather than harming them, perhaps for life. I believe the answer lies in a significant paradigm shift I call skills before decisions.
Litigants Have Changed
Litigants were different when I became a family law attorney in 1993. Justice Donald King’s latest appellate court decisions were setting spousal support and other family law precedents. The legislature had finalized the child support guidelines – although I remember doing them by hand! Community property division and separate property claims had been mostly settled in the 1980’s. The vast majority of divorcing parties were represented by counsel and litigation was mostly about legal research, writing and oral argument – the skills we learned in law school. Litigants came to Family court for decisions, then mostly followed those decisions.
Nowadays, with over 40 years of no-fault divorce laws, most divorcing parties never go to court. They make their decisions themselves or with the assistance of negotiating lawyers, divorce mediators, collaborative teams or family law facilitators. Today’s litigants in Family court represent themselves and are generally viewed as “difficult” – whether they’re represented or not – arguing unnecessarily over their children, engaged in domestic violence, child abuse, child alienation, false allegations of abuse or alienation, hiding money, hiding children, and so forth.
In other words, the “legal issue” is no longer the issue. Their behavior is the issue. When the court makes a decision, one (or both) of the parties often doesn’t accept the decision, doesn’t follow the decision and no change occurs in their dysfunctional behavior as parents. Thus, they return to court over and over again to argue for more decisions, to appeal decisions, to enforce decisions or to punish the other side.
In other words, their problem isn’t a lack of decisions. Their problem is a lack of decision skills – especially under stress.
Understanding Defensive Thinking
In simple terms, difficult parents are stuck in defensive thinking. This keeps them in conflict without resolution, which is why they are often called “high-conflict” parents. Neuroscientists have identified the amygdala in the right hemisphere of the brain as the trigger for much of our defensive behavior. It shuts down logical thinking and causes us to react quickly with fight, flight or freeze responses. Allan Schore, a psychiatrist, researcher and author at UCLA, tells us that most of the time our left brain is dominant. But in a crisis or totally new situation, our right brain dominates and this is where most of our defensive responses are located, including our intense negative emotions such as fear and anger. (Schore, 2003)
In other words, when litigants are emotionally upset they are truly not thinking logically. For survival purposes, defensive thinking is very fast, intense and includes the following:
• All-or-nothing thinking
• Intense emotions
• Extreme behaviors
• Preoccupation with blaming others
If someone was in a life-or-death situation, you could understand how this type of thinking helps them take quick action. After all, slowly analyzing conflicting information, staying calm, using mild behaviors and reflecting on yourself, are not good ways of surviving in a life-or-death crisis. However, separation and divorce are not life-and-death situations. Even though separation and divorce can be very upsetting, most people do not even use the courts to make their decisions. They are able to manage themselves without abusing each other or the children, or making false allegations or alienating the children. What’s different about the difficult or “high-conflict” litigants?
Further, brain research indicates that some people with personality disorders actually have an enlarged amygdala and a smaller corpus callosum, the “bridge” of neurons between the right and left hemisphere that help them work together. This combination seems to make it much more difficult for them to calm themselves down after they are very upset, so that they remain stuck in their right brain defensiveness even when it is not a crisis and this actually makes things worse for themselves. (Teicher, 2002)
In other words, such people lack the ability to easily move themselves back into left-hemisphere problem-solving when they are upset. This helps explain why doctors, lawyers, and other professionals may become high-conflict litigants despite their strong intellectual skills – they can’t get back in touch with them when they are upset. They are stuck in their right brain defensiveness.
Does this mean that high-conflict litigants all have personality disorders, larger right amygdala and smaller corpus callosums? I would suggest that many have some traits of these problems and I have written about this extensively in other books. (Eddy, 2006, 2011) However, the solutions I am going to suggest can be helpful to anyone, whether they have these problems or not. And research shows that even those with some personality disorders can outgrow the disorder by learning self-management skills – which may actually strengthen the parts of the brain that were weaker or smaller.
Teaching Upset People Self-Management Skills
Borderline personality disorder is one of the disorders most commonly mentioned in high-conflict family court cases and I believe it is one of the issues – at least having some traits of this disorder – for many high-conflict litigants. It is characterized by a preoccupation with fears of abandonment, wide mood swings, sudden and intense anger (often a cause of domestic violence) and the ability to look really good some of the time. One of the treatment methods for changing the behavior of people with this disorder is Dialectical Behavior Therapy. Key aspects of this treatment method include teaching skills for reducing one’s sense of distress, managing relationships more reasonably and keeping one’s moods in a more normal range. This method has been well-researched, but it takes a few years and can cost a fair amount.
An alternative that courts and legal professionals can consider is teaching clients – especially parents – skills for self-management that will help them calm themselves, communicate more effectively and less emotionally, and make their own decisions. Ideally, teaching clients these skills would help them then teach their children these skills. After all, children imitate their parents as their primary way of learning. They also absorb the distress, anger and fear that their parents have when they are preparing for court and after being in court.
Teaching skills before decisions would take several paradigm shifts for lawyers and judges – but no new laws, as the basis for counseling and classes is already established in family code. I would suggest the following:
Court orders for learning decision skills
High-conflict parents don’t seek to change or learn new skills. They have to be ordered to do it. A good example of this is drunk driving orders into treatment. While many resist engaging in the treatment, I worked with many recovering alcoholics and addicts in the 1980’s who became committed to recovery after several weeks or months in a court-ordered treatment program. This can work.
The court can anticipate that any case in which parents are fighting over custody of their children will become a “high-conflict” case and consume substantial court time. This is because the vast majority of parents do not fight over their children in divorce. We are talking about the small percentage with at least one parent with traits of a personality disorder. Reasonable parents simply don’t produce alienated children, don’t abuse their children and don’t abuse each other. An easy bright line for making such court orders could be: When either parent requests restrictive parenting orders for the other parent, such as no contact, supervised visitation or very limited time (less than 20%) over the objection of the other parent.
At the start of the case
It is very common for family courts to order counseling for one or both parents and the children, but at the end of the case or months into the case. This generally fails, as there is no accountability if the parent does not attend (because the case is over). Usually, high-conflict parents are so defensive about the court’s decisions that they often refuse to go to counseling – especially if they are the parent who has been found to be the only one needing therapy.
By learning self-management skills at the start of the case, they can be less involving of their children in their case and more likely to be effective at making small decisions without the court’s involvement. This also engages them in a positive activity related to their decision-making, rather than focusing on the usual negative engagement of gathering declarations and witnesses against the other party.
Such skills will also help them make their own decisions before the court does, so that many cases can stay out of court that would otherwise tie up the court’s calendar. They can learn such skills while waiting for hearings that are schedule many months away. Such an approach also gives some counseling involvement from the start for cases that are seriously out of control or cannot be clearly determined as presenting a danger or not to one of the parties or the child.
For both parties/parents
Under Family Code Section 3190, the court can order either one or both parents and the minor child into counseling for up to a year. Teaching decision skills is most effective with high-conflict parents when they are engaged in practicing the skills with another person. Counselors are the ideal people for this, as they can help the parent process their resistance to learning the skills and their resistance to shifting their focus away from blaming the other parent. Counselors are trained in dealing with resistance and counselors can be trained in focusing on decision skills.
At the start of a case it is often very hard to know which scenario the court is dealing with:
- The parent asking for restrictive orders is accurately describing a serious problem;
- The parent asking for restrictive orders has a serious problem; or
- Both parents have serious problems.
By ordering both parents to learn decision skills, neither parent is in the automatically defensive role and both parents learn skills that will help them and their children – the same skills.
Use of a Workbook
Decision skills can be broken down into several parts, especially as they relate to the problems of high-conflict parents. Flexible thinking (such as learning to make reasonable proposals), managed emotions (such as methods of calming themselves with encouraging statements), and moderate behaviors (such as communicating by emails that are Brief, Informative, Friendly and Firm). Using a standard workbook to learn and practice the skills further eliminates the parenting contest, as both parents will learn the same skills at the same time and be better able to teach these skills to their children using written exercises. Also, writing in a workbook helps our brains absorb material much more strongly than just thinking about it or talking about it. Writing also reinforces use of the left brain, which helps people who are stuck in their right brain defensiveness to get into problem-solving.
For a short length of time
By ordering both parents to learn decision skills with a workbook, this does not have to take a long period of time. If each parent has an individual counselor for a few weeks, then meets with the children a few times, this can all occur within 2-3 months. This is often how long parents have to wait these days anyway for hearings on parenting matters. And they just might reach their own decisions and no longer need to use the court date. Teaching such skills could also occur in a shorter, group format such as in a class. While this loses the benefits of individual counseling, it can make it more affordable. This would not take the place of a parenting class, but could be inserted at any time or done before a parenting class.
Required Paradigm Shifts
The most effective way of teaching these skills would require several paradigm shifts for lawyers, judges and family courts. It also requires an interdisciplinary approach, with the collaboration of all professionals involved with the family, including judges, lawyers, counselors and mediators. That way, all professionals can remind the parents to use the skills during times of decision making. Otherwise, parents can easily revert back to defensive thinking. I suggest the following paradigm shifts:
Focus on decision skills, rather than parenting skills
This approach shifts the focus to teaching the specific skills that parents need to make their own decisions. By teaching them positive engagement in their own decisions, they are more likely to follow their own decisions and make the small decisions that are required to implement any co-parenting plan.
Provide positive encouragement, rather than criticism
High-conflict parents simply can’t handle criticism – especially public criticism. This may seem surprising, given how obnoxious or aggressive they are. However, it’s a one-way street for people with personality disorders or traits. They truly give out criticism all the time, but they can’t tolerate receiving it. While legal professionals are used to disagreeing and criticizing each other in public debates, the average person isn’t used to this and parents with possible personality disorders or traits really can’t cope with this. (Ironically, the only people willing to drag their parenting matters into court these days are those who are the least able to handle the adversarial court process.)
Realize that insight doesn’t work for these clients
High-conflict clients lack insight into their own behavior, probably because they are stuck in their defensive thinking. Trying to argue with their logic or give them insight into their own behavior just makes them more defensive. Forgetaboudit! They need skills, which is something they can learn, rather than insight into their own past behavior. They need to focus on the future as much as possible, and learning skills is one effective way to do it.
High-conflict parents are difficult because they lack insight into their own problems, they are preoccupied with blaming others and they don’t change. These are characteristics of personality disorders, but parents may just have some traits. In any case, they have a narrower range of behavior, but they still have a range. We can bring out the best in them or the worst, depending on whether we trigger their defensiveness or sincerely make efforts to help them learn enough skills, step-by-step, to make their own reasonable proposals and separation and/or divorce decisions.
The social environment matters to these parents. If we provide enough of the right kind of structure for them to learn skills, then we may actually help calm them down, make their decisions and help their children while they move on. Of course, some cases will always end up in court, but we can reduce their numbers significantly, I believe, by shifting the emphasis from making decisions for parents to teaching them to make their own decisions, using the approach I have described above.
The methods I describe above were used in the San Diego Family Court from 2009-2011 without funding or the ability to study it, but almost all of approximately 30 cases settled out of court. In 2011, I shifted focus to two jurisdictions in Alberta, Canada, which each received $500,000 grants to implement and study this approach for three years. Preliminary results have been very encouraging and we expect to publish these results in a year or so.
California Family Code Section 3190. Order requiring counseling
- The court may require parents or any other party involved in a custody or visitation dispute, and the minor child, to participate in outpatient counseling with a licensed mental health professional, or through other community programs and services that provide appropriate counseling, including, but not limited to, mental health or substance abuse services, for not more than one year, provided that the program selected has counseling available for the designated period of time, if the court finds both of the following:
(1) The dispute between the parents, between the parent or parents and the child, between the parent or parents and another party seeking custody or visitation rights with the child, or between a party seeking custody or visitation rights and the child, poses a substantial danger to the best interest of the child.
(2) The counseling is in the best interest of the child.
Eddy, B. (2006). High Conflict People in Legal Disputes. Scottsdale, AZ: HCI Press.
Eddy, B. and Kreger, R. (2011). Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder. Oakland, CA: New Harbinger Press.
Schore, A. N. (2003). Affect Regulation and the Repair of the Self. New York, NY: W. W. Norton & Company.
Teicher, M. H. (2002). Scars That Won’t Heal: The Neurobiology of Child Abuse. Scientific American, 286 (3), 68-75.