Is Family Court Broken?

© 2010 By Bill Eddy, LCSW, Esq.

In a recent TV show, Dr. Phil said the family court system is broken. He was referring to several cases in which a parent sought a protective order against the other parent, alleging abusive or potentially dangerous behavior by that parent. These requests were denied by the court and the children ended up being injured or killed – as the requesting parent predicted. The most recent example involved a mother in California who asked the judge to order supervised visitation for the father with their 9-month-old son. She said the father was suicidal and the judge apparently said he believed she was lying. The judge denied her repeated requests. Later, the father killed the boy and himself. These are tragic cases and something must be done.

However, the problem is not that family court is broken. The problem is that it was never designed for the mental health problems of the “high-conflict” parents (and some professionals) flooding today’s court system. Based on my experience as a lawyer and a therapist, in half to two-thirds of these high-conflict cases there is a parent with a real mental health problem and a reasonable parent trying to get help. By pitting them against each other in an adversarial “parenting contest,” they are encouraged to cover up or exaggerate problems in order to “win” time with their own children.

When there is child abuse, substance abuse and/or domestic violence, these real problems need to be accurately identified, treatment required, and appropriate protective orders made. When parents make false allegations and/or engage in alienating behaviors, these also need to be identified, treatment required, and appropriate protective orders made. These aren’t value-judgment problems or political problems to be argued – these are mental health issues that need to be accurately identified and addressed.

Yet most judges, lawyers, and court-related counselors are not sufficiently trained to diagnose these mental health issues and get those in need into proper treatment. Instead, family court becomes a meaningless contest of opinions, spin and anger for the 10-20% of divorcing families who need help the most. They become known as “high-conflict” families, because they are not understood and are trapped in a contest rather than a true problem-solving environment. Parents, and their friends, family and other allies, don’t understand what is happening to them in this contest and believe that the professionals must simply be corrupt, greedy, biased, stupid and uncaring. In fact, from my experience training lawyers, judges, and court-involved therapists, I believe that 80-90%  of these professionals are some of the most sincere and caring people, and they resolve the vast majority of their cases peacefully and effectively.

What should be done?

  1. Eliminate the Parenting Contest: As soon as one parent seeks restricted parenting for the other parent (supervised parenting time, no contact or very little time), the court should divert the parents into a short-term counseling process that teaches both parents skills for problem-solving and can serve as a gateway to needed further treatment. By ordering both parents into such counseling, a parent with a mental health problem can immediately begin working on that problem and a parent without a mental health problem can immediately learn skills for dealing with the other parent (or skills for not dealing with the other parent, in cases of domestic violence). There is no incentive for covering up or exaggerating problems, as the parents will be encouraged to be the best parents that they can be. By ordering both parents at the start of a potential contest, the court avoids trying to guess whether one parent is dangerous or the other parent is lying – the same basic counseling skills can help both of them. At the same time, to be safe, the court can make temporary restraining orders and supervised parenting orders, knowing that there will be more information at the next hearing and that the parents are already being briefly managed by trained counselors. Such a diversion avoids creating a “winner” and a “loser.” With such counseling, many potentially high-conflict parents may decide to solve their problems out of court.
  2. Take Both Parents Seriously:  Parenting was never meant to be a legal issue. Courts were designed for hearing evidence and argument, then making all-or-nothing decisions (guilt or innocence; civil liability or not). Parenting is an ongoing process and cannot constructively occur when there are winners and losers. Children need both of their parents. No child wants to be with a loser. Instead of treating one parent as “all-good” and the other as “all-bad”, the court process should be validating of both parents and encouraging of behavior change when needed. We are learning that many mental health problems can be improved or solved with the proper treatment these days. Rather than having a contest to determine who is the “better parent,” the family court process should encourage both parents to be the best parents that they can be. This means that family law professionals have to overcome the adversarial structure of the court process and take a problem-solving approach if they want to truly help families. This means that both parents need to be listened to, as they may have helpful information about understanding the true problems in the family. This means that both parents need to be treated with empathy and respect, no matter how badly they have behaved in the past. The focus needs to be on the future, on treatment where appropriate and protection where necessary.
  3. Professional Training: Judges, lawyers and court-involved therapists need more training in helping families with mental health problems. Unlike physical illness, most mental health problems can be covered up or completely misunderstood for some period of time. These include addictions, depression, bipolar disorder, personality disorders and others. Personality disorders are apparently increasing in our society (recent studies show up to 20% in some age groups), and one of the characteristics is that the person doesn’t know they have a problem and are preoccupied with blaming others when things in their life go badly – which keeps them from improving their lives. In the court “parenting contest”, it’s easy to get these cases backwards, because many people with these disorders can be highly persuasive because of the intensity of their emotions and their dramatic, but distorted, information.
  4. Court Sanctions: Increasingly, judges and lawyers are expressing concerns about the 10-20% high-conflict professionals who seem to have mental health issues of their own and often escalate problems rather than trying to resolve them. Unfortunately, in today’s family courts – including in California – when there is misconduct in the court process, only a party can be sanctioned. When a party is sanctioned in family court, sometimes it includes behavior engaged in by their high-conflict lawyer. If legislatures would give judges the authorization to sanction lawyers directly for misconduct, then I believe we would see a significant reduction in some of that behavior – which may motivate them to get help, such as occurs when alcoholics and addicts have consequences. We know that mental health treatment often only occurs when someone is motivated by serious enough consequences.
  5. Out-of-court solutions: Most of all, parents need to know that they do not need to engage in a family court parenting contest. There are successful alternatives for the vast majority of separating or divorcing parents. Mediation and collaborative divorce are two methods which tend to calm the conflict and encourage problem-solving, rather than endlessly fighting with each other. For those who feel the need to go to court for orders of protection or restrictions on parenting, they can ask for methods such as I described in item number one above.

The New Ways for Families® program is one such short-term method, which is being tried in the San Diego Family Court system. If a parent requests it, the court is likely to order it. The parents pay the cost, but it is minimal compared to the cost of a parenting contest and letting serious problems become escalated instead of realistically addressed. Parents can also volunteer for this method out of court, if they believe the other parent has a problem. It will help both of them deal with each other. For information: 619-209-7796.

Today’s “high-conflict” parents need help, not judgment or criticism or a parenting contest. Today’s family law professionals need more training to deal with mental health problems. And today’s family courts need to get out of the business of handling parenting matters and focus on handling legal issues, such as policies for determining community property division, child support, spousal support and making protective orders when necessary. The family court process isn’t broken – it just doesn’t fit the mental health needs of today’s high-conflict parents.

Bill Eddy is a lawyer, therapist, and mediator. He is the co-founder and Training Director of the High Conflict Institute, a training and consultation firm that trains professionals to deal with high conflict people and situations. He is the author of several books and methods for handling high conflict personalities and high conflict disputes with the most difficult people.

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