THE REASONABLE PARENT’S DILEMMA

 

[Excerpt from the book Don’t Alienate the Kids! Raising Resilient Children While Avoiding High Conflict Divorce, © 2010 by Bill Eddy]

Jacob and Sarah

When Jacob and Sarah separated, their children were 3 and 5. Several months after they separated and were getting ready to go to court, Sarah said that Jacob touched their 3-year-old son inappropriately and she made a child sexual abuse report to Child Protective Services (CPS). Sarah and her attorney obtained temporary custody of the children with Sarah, and Jacob had supervised parenting time for a few hours per week while CPS investigated the case.

CPS found no credibility to the allegations and closed their case as “unfounded.” After that, Jacob was given unsupervised parenting time for a day and a half each week.

Six months later, Sarah again made a report of child sexual abuse against Jacob. She told parents and teachers at their son’s pre-school and at their daughter’s kindergarten that Jacob was a child molester.

CPS investigated this new report and again determined it to be unfounded. Jacob and his attorney went to court seeking sole legal and physical custody of the children. At court, a full evaluation with a psychologist was ordered and the judge temporarily gave Jacob alternate weekends and one night per week – exchanging the children at their son’s preschool and their daughter’s school.

While the evaluation was going on with the psychologist, Sarah would show up at school to give things to the children just a few minutes before Jacob was going to pick them up. Then, when he arrived, they were upset and confused about which parent to go with.

When they were in his care, she would call to tell them good night and described how upset their stuffed toys were about missing them. Sometimes their son would cry himself to sleep at his father’s house after these calls from their mother.

Sarah believed that the children would be better off without their father in their lives, to protect them from his sexual abuse. Jacob believed that the children should have very little contact with their mother, to protect them from her extreme thinking and interference with his role as a father.  

What should Jacob do? What should Sarah do?

Reasonable parents are faced with a serious dilemma when separating from or divorcing a high-conflict parent. On one hand, it might seem best to totally exclude an HCP parent from the child’s life, in order to protect the child from the extreme thinking and behavior of that parent. On the other hand, that approach itself will teach the child extreme solutions to relationship problems. What should you do?

Efforts to exclude the HCP parent usually escalate the HCP’s extremely defensive and aggressive behavior. Once you get to court to fight for excluding the HCP parent, the HCP may turn on the charm and blame so strong that YOU may be seen as the HCP parent. This behavior that’s aggressively defensive is what often drives high-conflict divorces and custody disputes.

But if you don’t fight to put some limits on the HCP parent’s behavior with the child, he or she may feel free to abuse the child or have a highly negative influence on the child’s development and may actually alienate the child against you. You don’t want this to happen either.

The Assertive Approach

The solution that I have arrived at (after 30 years) is what I call “The Assertive Approach.” This is an alternative to being overly aggressive and trying to eliminate the other parent – and an alternative to being overly passive and adapting to whatever the HCP parent does.

An assertive approach seeks objective information, provides objective information to decision-makers, and seeks restrictions on “bad behaviors,” rather than the elimination of “bad people.” An assertive approach sees the good and bad in everyone, rather than seeing one person as all-good and the other as all-bad. While one person may be behaving much better than the other, we all have things we can learn.

I suggest that you assertively seek assistance in assessing your situation and seek restrictions on specific bad behaviors. Ask the court or professionals to put protections in place – while not trying to eliminate the HCP parent from the children’s lives. This shows that you are not engaging in all-or-nothing thinking and extreme solutions, while also showing the need for restrictions and protections. In high-conflict cases, the reasonable parent is often blamed for being a high-conflict parent, while the true HCP is more persuasive and charming, and often prevails. The assertive approach will help you deal more effectively with this problem, so that your proposals and responses are not likely to be viewed as those of a high-conflict person. 

Using an assertive approach, you can demonstrate that you want an independent, neutral person to assess the situation and provide feedback about both parents behavior. Then, each parent can make needed improvements in their own bad behavior. This way, you can demonstrate that you are also willing to look at your own behavior and make improvements.

With this assertive approach, you do not trigger as much defensiveness from the other parent and from professionals. At the same time, you do not give the HCP parent free rein to act negatively in your children’s lives. The goal becomes identifying bad behavior and sincerely seeking the learning of new skills. Then, whatever parenting arrangement there is (including supervised access or limited time, when necessary), the children are protected from the worst behaviors while still having a relationship with both parents.

Finding the Assertive Balance

Accomplishing this balance takes practice and flexible thinking. I know you may not like this approach, but I have seen the other approaches (too aggressive or too passive) generally fail while driving high-conflict cases – with the children as the victims of the ongoing conflict.

For example, here are three scenarios from my experience that don’t work:

1)  If your behavior is just as aggressive as the HCP parent, then the court may treat both of you as equally difficult, and the HCP parent may feel free to cause chaos and negativity in the child’s life.

2)  If you aggressively pursue all-or-nothing solutions and persuade the court to determine that the HCP parent is an “all-bad parent,” then that parent usually becomes highly defensive and fights even harder – often in court or with out-of-court maneuvers.

3)  If you are passive and the court accepts false or misleading allegations about you and wrongly determines that YOU are an “all-bad parent,” then the HCP parent often becomes over-confident and escalates their negativity.

So the best approach seems to be the assertive, balanced approach, such as occurred with Jacob and Sarah.

Jacob and Sarah

Jacob was referred to me to be his attorney, because I was experienced with child sexual abuse cases (both true cases and false allegations). He was furious at being falsely accused of being a child molester two times at court, and still in the eyes of the other parents at his children’s schools. He wanted me to obtain primary physical custody for him, with very limited – possibly supervised – contact with the mother. After all, she was having a highly negative influence on them and appeared unlikely to stop being who she was – an HCP. She seemed to have no awareness of the inappropriateness of her behavior, from making false allegations to manipulating her children’s emotions while they were with their father.

Jacob was preparing to meet with the psychologist for the evaluation. I encouraged Jacob to take the assertive approach and to seek a balance in dealing with Sarah – and to tell the psychologist that was what he wanted. Rather than try to almost eliminate her from the children’s lives, I encouraged him to use flexible thinking in developing a parenting plan that would protect the children the most from further conflict while giving him the opportunity to teach them good skills himself.

He told the psychologist that he was seeking a shared parenting schedule, with half of the time with each parent. This was much less than he really wanted, but he had come to believe that this might work, if she was not allowed to upset the children at school or on the phone during his parenting time.

The psychologist had already determined that the allegations of child sexual abuse against Jacob had no basis, and that Sarah was unlikely to change her point of view – about anything! The psychologist was impressed that Jacob was willing to share parenting with her, despite the history of allegations. In the end, the psychologist recommended equal parenting time, using a “parallel parenting plan.” This meant that when the children were with one parent there would be no contact with the other parent. It also meant that the parents would only communicate with each other by email, and only one email a day at most, and only about parenting issues.

Parallel Parenting?

Parallel parenting puts up an imaginary wall between the parents, without interfering with each parent’s time with the children. The percentage of time with each parent is a separate issue. Parallel parenting plans can be 50-50 with each parent, 90% with one parent and 10% with the other, or any other percentage combination. The idea is to keep the parents from interfering with each other’s parenting time and from being in frequent conflict over the children, by keeping them from having direct contact. This can be a very helpful approach in domestic violence cases and/or child alienation cases. 

Sarah didn’t like this recommendation, but she accepted it. Both parents’ lawyers and the psychologist met with the parents to work out the details of this plan by agreement, without going back to court. Neither parent was identified as the “all-good” parent or the “all-bad” parent. In fact, neither parent was even identified as the better parent. I’m sure in Sarah’s mind that she sees Jacob as an “all-bad” parent.

Jacob strongly believes that Sarah is an HCP, but recognizes that she has strengths and weaknesses. He has learned how to work with her, using flexible thinking, managed emotions, and moderate behaviors. He has also taught his children how to use these skills when problems arise anywhere in their lives – at school, with friends, with him and with their mother.

This case has remained fairly stable for several years. There have been bumps in the road, but all of the professionals involved have remained calm and helped the parents remain calm and focused on solving problems. They have stayed out of court and avoided many of the pitfalls that other more aggressive or more passive parents have fallen into. 

Finding the Balance

Now I know that there will be parents and professionals who don’t like the outcome in this case. Some will say: “Maybe he did sexually abuse the child and just wasn’t caught. He should never have been allowed to have half of the parenting time, especially in a parallel parenting plan. It just exposes the children to a greater risk that he will abuse them and not get caught in the future.”

Others might say: “She should have had supervised parenting time. How could you discourage him from protecting his children against such a manipulative and disordered parent? You should have sought sole legal and physical custody for him.”

In fact, I have had cases where I pursued and won a no-contact order against a father who had committed child sexual abuse. I have had cases where I pursued and won a change of custody from a mother who was making false allegations. But these cases did not end there with a clear, one-sided victory. In fact, these “victories” were just another small step in these high-conflict cases.

When I have won no-contact orders, the child has violated the order and/or the court has eventually ended the order. In the absence of a criminal conviction, family courts are unlikely to keep an abusive parent from having contact with the child, although it may be supervised and the parent may be required to get treatment.

When I have won changes of custody because of false allegations or child alienation, the child has violated the order (run away to the favored parent’s house) and/or the favored parent has run away with the child. These have been hollow victories.

These experiences have led me to encourage parents and professionals to use an assertive approach and to avoid eliminating one parent from the children’s lives. This is not an absolute, every case approach. But I would encourage you to keep an open mind and consider the benefits to children of using this approach in almost every case.

Most states have laws giving primary custody to the parent who will most support the child’s relationship with the other parent. Any reason to interfere with shared parenting may be viewed negatively by the court. Therefore, concerns about abuse, domestic violence, and alienation should not be tied to winning a custody victory, but rather should show a desire for the parent to get help while continuing in the child’s life.

What about domestic violence?

The concept of parallel parenting has become a very useful mechanism to help keep parents away from each other while each still has contact with the children. For example, research shows that in domestic violence cases the courts traditionally have given substantial time to the perpetrator of the violence, regardless of the violence. It is not clear why this is, except that the courts may either not believe in the allegations of violence or they believe that they are true but not serious enough to restrict contact for that parent with the children. This is one of those highly controversial areas of family law and a huge amount of time is spent arguing about it.

Instead, parallel parenting is a solution for the victim parent, so that there is no forced contact with the perpetrator of the violence. Under a parallel parenting plan, each parent’s time with the children is to be uninterrupted by contact with the other parent (no phone calls, no joint decisions to be made, and so forth).

A parallel parenting plan could be any amount of time for each parent. While it may not be a 50-50 schedule, I have still seen many parallel parenting cases with substantial parenting time for both parents (60-40, 70-30). Since the courts often struggle with sorting out the type and severity of domestic violence allegations, parallel parenting may be a moderate approach that can last throughout childhood without constant returns to court.

Rather than requesting a rigid 50-50, it may be appropriate in some domestic violence cases and alienation cases to request substantial time with each parent in a parallel plan (which could be 70-30 or 60-40), so long as the children are protected from risk of ongoing abuse. In some types of domestic violence cases, there is little risk of violence after the parents have separated. In others, the risk remains high, especially when the perpetrator has a violent “power and control” type of high-conflict personality which may become focused on the child.

In some cases with parallel parenting, the courts do not allow flexibility within the plan, so that changes are not constantly being made.  For this reason, it may be the most stable plan in cases with allegations of domestic violence, child abuse or child alienation. Otherwise, families with these allegations are subject to a lot of manipulation by an HCP parent seeking constant change and control, whether a perpetrator of domestic violence, child abuse or child alienation.

In my mind, this inflexible schedule is not all-or-nothing thinking, but rather a way to manage emotions and keep behaviors moderate by reducing the opportunities for conflict. It is a way to set limits on the HCP’s often extremely manipulative and demanding behavior. This also helps the child develop a sense of stability, which will increase the chances of having a more secure attachment with each of the parents. 

 

Bill Eddy is a family law attorney (Certified Family Law Specialist), a therapist with children and families (Licensed Clinical Social Worker), a family mediator (Senior Family Mediator, National Conflict Resolution Center) and President of the High Conflict Institute. He has handled over 400 divorces as a lawyer and over 1100 divorces as a mediator. He is the developer of the New Ways for Families method in use in five jurisdictions in the United States and Canada. He has taught at the University of San Diego School of Law, the Pepperdine School of Law and is on the part-time faculty of the National Judicial College. He is the author of several books, including The Future of Family Court: Structure, Skills and Less Stress, Don’t Alienate the Kids! Raising Resilient Children While Avoiding High Conflict Divorce, and It’s All Your Fault! 12 Tips for Managing People Who Blame Others for Everything. For more information about his seminars, consultations and books: www.HighConflictInstitute.com.