Excerpt from The Future of Family Court: Structure, Skills and Less Stress, Chapter 3: Structure & Accountability, by Bill Eddy, LCSW ESQ
How should high-conflict cases be handled differently by the judge?
It’s important to recognize that their problem is a lack of the three conflict-reducing skills (flexible thinking, managed emotions, and moderate behaviors). For whatever reason, high-conflict parents cannot stop themselves from self-harm and from harming their children. One or both parents is truly “out of control” – they can’t control their all-or- nothing thinking, their unmanaged emotions and their extreme behavior. Abuse and alienation are two symptoms of their high-conflict personalities. More than having decisions made for them, they need to be required to learn and use these basic skills. The courts actually have the opportunity to help them get started, while still supervising them.
First, courts need to provide a structure for high-conflict parents. Right from the start of a potentially high-conflict case, judges should order parenting classes or short-term counseling that teaches them to work on these three basic conflict reducing skills.
How does the judge know that it is a potentially high-conflict case?
When one or both parents seek to restrict the other’s parenting time. (That is when the author’s New Ways for Families® method is designed to be ordered, as described in a later chapter of this book.) Such restrictive requests almost always trigger a “parent contest” which rapidly escalates both rents’ defensiveness – which is passed on to the child.
Courts don’t need to wait for an evaluation of abuse or alienation to know that high-conflict behavior may be just around the corner. When the parent contest begins is when alienation will begin to grow, as HCP parents engage in more and more splitting to “win” the parent contest – whether the HCP parent is the initiator of the court’s involvement or defending against allegations, or both – and the child begins to absorb one or both parent’s high anxiety, stress and anger.
A request for restricted parenting means something is seriously wrong in the family. This should trigger three theories of the case in the judge’s mind:
the “restricted” parent is an HCP and needs restrictions because of out-of-control behavior, such as domestic violence, child abuse or substance abuse;
the parent requesting restrictions is an HCP with a personality disorder or traits and is distorting the other parent’s reasonable behavior; or
both parents may be HCPs with serious problems.
In all of these cases, putting both parents into a parenting class both of them and their children, and help head off a high conflict case. We already know what skills they need.
Of course, the court should concurrently make temporary orders, such as temporary protective orders, temporary child support and temporary parenting plan. By making orders for boosting their conflict reducing skills, the court shifts the focus onto both parents to work on themselves, rather than just focusing on the accused. This helps avoid splitting, lowers HCP expectations of vindication or revenge, and sends the message that court is really not where they belong with their parenting issues.
Second, courts need to follow up with accountability at all future hearings. When the parents return to court, the judge should first quiz them on what they have learned in their parenting class or counseling, before considering any motions before the court. HCP parents won’t use these skills, except by repetition and being constantly reminded by professionals. The court should make clear that it is their responsibility to be solving their parenting problems reasonably, and will only make decisions for them after all other reasonable methods have been exhausted. The court should be a very reluctant decision-maker in the area of parenting for high conflict parents.
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 and has taught professionals in the U.S. and more than ten countries.