By Gary Direnfeld
This article appeared in the Issue 2, 2015 (Volume 37, Number 2) of Family Law News, and is being provided as a sample.
The journal is sent automatically to all Section members.
We invite you to Join the Section!
Gary Direnfeld, MSW, RSW, is a social worker from Ontario, Canada with more than 33 years of diverse experience working with parents, teens, and young children. Gary is a Family Relationship Professional in the Hamilton/Halton Collaborative Family Law Group. Gary conducts workshops throughout North America; is the author of Raising Kids Without Raising Cane and Marriage Rescue; hosted 65 episodes of a reality TV series, Newlywed, Nearly Dead; and is the parenting columnist for the Hamilton Spectator newspaper. Courts in Ontario, Canada, consider Gary an expert on child development, parent-child relations, marital and family therapy, custody and access recommendations, social work and an expert for the purpose of giving a critique on a
Section 112 (social work) report.
Let's start by remembering the story of Solomon.
King Solomon was faced with the dilemma of sorting out the parentage of two women who each laid claim to an infant. Upon hearing both women's point of view and still undecided, King Solomon withdrew his sword from its scabbard and asked that the infant be brought forward. His intention was to cut the infant in two equal pieces to satisfy both claimants. He would provide a fair and equitable outcome. They would each have half. However, one of the would-be mothers stepped forward to renounce her claim uttering, “But to cut the child in two, he would surely die.” With that parental sacrifice King Solomon recognized her as the rightful mother, placing the well-being of the child above her own and she was rewarded with the care of the child.
This biblical story holds so much weight when we consider the limits of family law and family court in particular for the settling of parenting disputes. It's long been said that the court is a blunt instrument, but how blunt?
Now more-so than ever, parents are fighting over equal parenting time, particularly with fathers seeking a 50/50 parenting arrangement over the mother's preference that the children be in her care a disproportionate amount of time. Whether this is to address child support issues that in many jurisdictions has the quantum of child support connected to the percentage of time a child is in each parent's care or an outcome of the women's movement that men are catching up to and applying to themselves in the name of equality. Courts more than ever are being asked to cut children in two.
There is a concept known in medicine as an iatrogenic effect. This concept is defined as essentially an unintended negative consequence by a healer from a well intentioned act.
With an eye to fairness and equity, it is relatively easy to subdivide and apportion time between parents, but at what cost to the child. What are the iatrogenic effects of court involvement for settling family disputes?
The Honorable Judge Jaime R. Román in this year's first edition of the Family Law News, lamented the fact that he counted 17 attempted suicides of children embroiled in family law matters over the course of his 3 1/2 year tenure as a family court judge. Clearly as an iatrogenic effect, the cure of family court and unremitting parental conflict carries considerable risk. Suicide and homicide are the ultimate risks and in pointing out those, there are many others that do not necessarily make the threshold of attention yet spell poor to disastrous outcomes for the children we purport to serve.
When we cut children in two with the blunt instrument of court, indelicately we place children in untenable situations.
The child not yet ready for a week-about parenting plan (or any other 50/50 carving of parental time), experiences an escalation of anxiety and loss as the week plays out. When eased by the re-introduction of the week-long absent parent, that child then begins the process of escalating anxiety and loss again as the next week plays out. Is there any wonder this young child surfaces with eating, sleep, toileting and separation issues? Although each parent blames the other for the distress of the child, wondering what transpired in the others’ home, the real culprit is a parenting plan mismatched to the developmental needs of the child. While this will not kill the child in infancy, toddler-hood or as a preschooler, imagine the developmental trajectory for that child come adolescence. Early onset sexual behavior, drugs, alcohol, truancy delinquency and suicide are the teenager's solution to life's relentless distress. The seeds of this child's destruction are sown from as young as infancy.
Given the court as a blunt instrument and as parents engage in the win/lose cycle with each trying to reset the wrong of the previously perceived poor judgment, the child is subject to the unremitting parental distress and turmoil. The child carries the weight of that distress and turmoil to school as a distraction to their studies. To the degree the children are distracted by the parental distress and turmoil, these children, unable to concentrate, next act out their anxiety or despondency with poorly controlled behavior to outright egregious behavior. What had been known as Attention Deficit Disorder, a colleague (Paul Ricketts) has more aptly called Attention Divided by Divorce. The call of the child's inattention up to and including serious misbehavior and/or mental health issues, serves as both the distraction from and grist for more parental conflict and further court involvement.
Court carries it's own iatrogenic effects. The social science literature tells us that court (or third party) imposed outcomes are less durable and more poorly followed than those outcome achieved between the parties themselves. In other words, while a court may impose a solution to any given problem on any given day, this in and of itself does not necessarily lend itself to peace between litigants who by necessity must continue to maintain an ongoing relationship by virtue of their connectedness as parents.
When we consider the outcome of children between separated parents and ask, why do some children do well and others not so, the salient difference has less to do with decisions of faith, school, residence or extra-curricular activities and singularly more-so with parental conflict. The greater the parental conflict, the greater the risk of a poor outcome. Imposed decisions while providing respite from a dispute typically only serve to escalate conflict when one is pleased and the other resentful with the outcome. The displeasure surfaces in the form of a new dispute for another round of court action.
The Adverse Childhood Experiences Study (ACE1 ) teaches us that the greater the exposure or number of negative childhood experiences such as abuse, neglect and exposure to traumatic stressors, the greater the likelihood of poor outcomes, up to and including “early death”. The other major poor outcomes include2 :
As one can imagine, any of those issues would wreak havoc on school attendance, vocational participation and intimate relationships – all of which are an outcome of oftentimes, preventable parental behavior.
If court is not the answer, but indeed, part of the problem in creating adverse childhood experiences, then how do separating parents sort out the care of children between them?
Those answers lay in the alternatives to court or at least a different kind of court. Again, as per The Honorable Judge Jaime R. Román's article in this year's first edition of the Family Law News, he points to his contrasting experience between Family Court and Criminal Domestic Violence Court:
There is however a stark difference between family law (court) and criminal domestic violence (court). The former is an environment rich in adversarial practice; the latter is an environment that leans toward collaboration. The difference, cognizant of the relation extant between the victim and the dependent, is palpable.3
I am increasingly convinced that the process of relational dissolution needs improvement. Collaboration and civility should be touchstones in a process rife with emotion but with significant consequences on both the parties and, in particular, their children.4
These processes are already available. They include Collaborative Practice and Mediation to name but two.
Collaborative Practice (also known as Collaborative Law) has both parents represented by council who will not go to court and who may work in a team that can include financial and mental health and family/child professionals. Through this team, parents can sort out a plan for the settling of property/finances and the care of the children between them. The parents can sort these matters out in private and on a timetable suited to their needs versus imposed by court process. The outcome or agreement is solely determined by themselves, with the support and guidance offered by whomever is invited to the table. Complex matters can be addressed by investing in ancillary support and services versus the hardening of positions with the investment in litigation.
Mediation, perhaps with less complex matters to be resolved, can help parents craft an agreement with the support of a trained referee who not only maintains and facilitates the rules of engagement but who typically offers and facilitates creative solutions to those whose conflict may have deteriorated to an either/or view of the problem.
Collaborative Practice and Mediation are contrasted to litigation and even the lawyer-assisted negotiation that more often takes place in the shadow of litigation. The latter pits parents in a contest to promote better over worse, winner over loser, all by determining who is the nastier or less deserving. The iatrogenic effects are manifold in litigation and lawyer assisted negotiation in the shadow of litigation and serious to the point of death.
These other processes, whether as a family court, as The Honorable Judge Jaime R. Román may envision or collaborative practice and mediation, aim to see parents as their best version of themselves and if not at their best, then to help them become a better version such that issues and concerns may dispel and tenable solutions emerge. There is a future orientation to these processes that is less dependent upon proving the sins of the past.
Iatrogenic effects? These dispute resolution processes are not necessarily suited to everyone and in cases of serious violence or abuse or mental health issues or power imbalances, may not be suitable at all. If the alternate dispute resolution process fails, this in turn can lead to upset and greater costs. It is prudent to screen for service, particularly as it pertains to domestic violence and power imbalances and in view of positive findings, either consider safety and/or supportive strategies or discontinue.
However, practice wisdom seems to suggest that contrary to iatrogenic effects where there are negative unintended consequences, there tends to be positive unintended consequences or as otherwise called, bonuses to collaborative practice and mediation. Whereas those who engage in litigation tend to harden bad feelings towards each other, those who engage in acts of civility, tend to improve interpersonal behavior with their separated partner. In view of the on-going nature of a parental relationship, this bodes well for the children. The children are less likely to amass more adverse childhood experiences and more likely to be exposed to improved conflict resolution skills and parental civility – behaviors when adopted from parental role models that are well suited for managing at school, the playground and adult intimate life.
Imagine the joy of King Solomon when a child no longer need be cut in two. We speak often of the best interests of children and think of this when choosing outcomes for their care between separated parents. Now the concept of the best interest of the child must be applied to the actual process of dispute resolution.
Justice Román discussed and described that in the context of family court. What though if court was not an option or at least an option of last resort, as in Australia? What if our very processes were not set to ramp up conflict and bad feelings? Could not our children be spared the fallout from the first trauma of parental separation? Perhaps they need not be re-traumatized by on-going litigation.
So much not only rests with the judiciary, but with the training of lawyers old and new. How we train and for what we train sets the course for how lawyers practice.
Hopefully those family law lawyers trained predominantly in processes of litigation can self-reflect and see the inadvertent carnage that litigation can impose on families and children the extreme of which Justice Román lamented in his article. Hopefully those lawyers trained in litigation can avail themselves of training in alternative processes if only to expand their awareness, whether or not they ever practice such. And hopefully law schools can teach at least equally these alternate dispute resolution processes such that they are no longer viewed as alternate, but rather, primary.
Might we then expand beyond the limits of family law? Might not the family law lawyer also be a healer? With an appreciation of the law, we should be able to help parents and families make adjustment to serious life changes that maintain the integrity of all members therein. In so doing, we may elevate the view of lawyers by the general public and offer something greater than a profession, but perhaps a calling. Be greater than the limits of family law. Move beyond its limits and truly serve your client's highest interests and help them enjoy their child whole.
My father used to tell me, “You can win the battle and lose the war.” An extra day, week or hour or a difference in an extra-curricular activity can be a win for a parent at the expense of the child's long-term development. That makes it a loss for the child. The higher interest of parents is a lifelong relationship with their then responsible and happy adult children.
Aim for that. Be a fabulous lawyer.
1 The Adverse Childhood Experiences (ACE) Study http://www.cdc.gov/violenceprevention/acestudy/ Back
2 The Adverse Childhood Experiences – Major Findings. http://www.cdc.gov/violenceprevention/acestudy/findings.html Back
3 The Honorable Judge Jaime R. Román, We Can Make a Difference, Fam. L. News· ISSUE 1, 2015 · VOL. 37 No. 1, pg. 30.Back
4 ibid. Back