6 Ways You Should Be Assertive in Family Court

dad and young daughter working in kitchen together near sink

© 2016 Bill Eddy, LCSW, Esq Family court presents a difficult dilemma for reasonable people. If you act reasonably and use the cooperative problem-solving skills you use in daily life, you risk losing your case, your kids and your property because family court is a highly adversarial process that rewards combative thinking and behavior. This is why people with Borderline Personality Disorder (BPD) and Narcissistic Personality Disorder (NPD) traits are often attracted to court and often win.If the target takes a passive approach—and many do—then the blamer’s allegations appear unchallenged and therefore true. Person A allowed this to happen at her hearing, when she did not have an attorney and did not respond in her own defense to Person B’s allegations. If you allow this to happen, it gets harder and harder to overcome the appearance that you accept the allegations as true. Remember, the burden is on you (and your attorney) to assert your position. The court won’t otherwise try to figure it out, and rarely asks you questions, such as whether or not you agree. You or your attorney must convey assertively that you do not agree; otherwise the judge may assume that each of the blamer’s statements is true. But if your approach is too aggressive, you may give the appearance of being the abusive person you say you’re not. Husband’s urge to have his attorney make a lot of unsupported allegations against Wife at the next hearing will generally backfire. While TV and movies are filled with dramatic and aggressive attorneys, this often backfires in real courts, especially in the long run. Ultimately, most court cases are won or lost based on the evidence gathered through assertive homework. In reality, in family court, the burden is on you to raise credible reports of abuse you or your children have experienced, or to respond to false abuse allegations against you. You and your attorney must be very assertive about gathering evidence that already exists, presenting that evidence to the court, and noticing new evidence as it occurs throughout your case. The Assertive Approach 1.  Start documenting right away. High conflict divorces often start with an emergency court hearing about true or false allegations of abusive behavior. If you or the person with BP or NP traits is seeking court orders (often restraining or “protective” orders), it is critical that you put together detailed, accurate information to present to the court. In a notebook, record detailed information about parenting behavior (yours and the other parent’s), abusive behaviors, threatening statements made, and explanations of any confrontations between the two of you. Many people keep a daily diary (in a safe place), even before they separate. Focus on actual statements and behaviors, and avoid opinions and interpretations. If and when you need to describe events in court, you want to be seen as capable of presenting very objective, factual information that’s most helpful to the judge and other professionals. Information that is written down the same day as it happens is considered far more credible than something written a week or a month later. 2.  Think strategically, not reactively. Avoid acting out of frustration and anger; otherwise you may do things that waste energy and will hurt you in the long term. Example: Thomas was so upset after a hearing in which supervised visitation was ordered for him that he sent Tammy an e-mail saying that she should be ashamed of herself, and that their daughter would never forgive her for lying and saying he abused her. At the next hearing, this spontaneous and reactive e-mail showed up as an exhibit to Tammy’s declaration, intended to show that Thomas was aggressive, angry, and unstable. Thomas’s lawyer convinced him to never send an angry e-mail again without showing it to him first. 3.  Check with a therapist or attorney whenever you feel like communicating angrily with your partner. You are better off processing your frustrations in therapy than putting something angry in writing or in a voice mail that could inadvertently become a new court document. Advise your friends and relatives to avoid such angry statements to your partner for the same reason. Invest time in learning the BIFF Response® method of effectively communicating; especially when your emails and texts are likely to be filed in court. 4.  Choose your battles. Many people who are divorcing someone with BP or NP traits complain about how unfair the court process is and how unfair it is that the blamer gets away with certain things. Of course, this is upsetting, but your case actions must be based on what you need to do to make it right, not what you feel upset about. You must think strategically and choose your battles. Talk to your attorney about which issues need a response and which ones you can ignore. Attorney letters sent back and forth can be very provocative but don’t always need a response, especially if they are not in the court record. “Your client is always late with support payments and doesn’t seem to care if the children ever eat again”—this letter may or may not need a response at all. It is a choice. If there was a problem and the payment was a day or two late, it may help to provide an explanation to the blamer’s attorney, just in case this letter shows up as an exhibit to a declaration at the next hearing. You should always respond to court declarations containing false statements. A general denial may be sufficient, but false information at court needs a written correction, just to protect you now and in the future. 5.  Don’t make yourself into a target. When you’re in a family court battle, you need to be as perfect as possible. Stop and think as often as you can. Remember, you’re being watched by your partner and your partner’s attorney. Any of your public actions and some of your private actions may be exposed and twisted around to fit their adversarial purposes. Innocent discussions with your partner, or

4 Dilemmas in Family Court

white brick wall with the number 4 painted on it

4 Dilemmas in Family Court   © 2012 By Bill Eddy, LCSW, Esq.   I am writing this in response to a blog comment which raises some important concerns about family decision-making in family court, which are raised worldwide and not unique to any one state or province. Here are the dilemmas that I see in addressing your concerns: Should there be a presumption that all parents are equal? As you suggested, I agree with you that is a dangerous presumption, because there ARE parents who should have restrictions for their parenting. (See my 5-part blog article last month.) Should all parents be expected to negotiate their parenting plans? With protections in place (such as not requiring parents to be in the same room or having them arrive and leave separately), I believe that it is a good idea to expect all parents to ATTEMPT negotiations. With an abusive, lying or alienating parent, this may not result in a settlement and should get more thorough attention and assistance from professionals (see my suggestions below). Is the parent who says he or she is the protective parent always right? I have seen cases (1) where the person who said they were being the protective parent prevailed and that parent was in fact the most protective parent. However, I have also seen cases (2) in which the opposite was the case – the person who claimed he or she was the protective parent was in fact an abusive parent in denial about their own behavior. I have also seen cases (3) in which both parents were blaming the other and neither was protective of the child because they were both lacking significantly in needed parenting skills. So this is the core dilemma of family court: How do you tell which parent is abusive, lying or alienating, when they both say it’s the other parent. In my mind, all three theories that I just mentioned need to be evaluated. Are family court judges making good or bad decisions when they disagree with experts? This is a similar dilemma, because I have been involved in cases in which the experts were more accurate and in cases in which the experts had become emotionally too involved and were less accurate than the judge, and cases in which I believed the experts and the judge were inaccurate – fortunately, these cases are a small minority of cases and some have even been corrected over time.   For the above reasons, I am trying to educate judges, lawyers and mental health professionals about high-conflict behavior and personalities. I have recently written a little book about this titled: The Future of Family Court, in which I have two suggestions for family courts to deal with these dilemmas: A. Provide a stronger court-ordered structure for parents in conflict to learn skills to help them communicate, negotiate and make decisions, while still having protective orders in place when needed. The example I give is the New Ways for Families® program of short-term counseling or education. This fits the reality that even abusive parents almost always get parenting time and a lot of it unsupervised (I’m not saying I agree with that, but it is generally true in most courts because of the dilemmas above). So it’s better to provide skills that may reduce these abusive, lying and alienating behaviors as much as possible, while helping parents learn skills to pass on to their children. But this doesn’t mean that all parenting conflicts will be settled or should be settled. B. Provide more scientific analysis of behavior patterns in the cases that don’t settle. I have suggested a method of organizing and viewing behavior information called HCI Pattern Analysis, which I describe in the book. The focus in these cases should be on health and safety for the child, rather than simply guessing at who is the better parent. These are serious concerns, so I also recommend more intensive training for judges about mental health issues.   In short, I believe that family courts should assist most parents in making their own decisions, rather than escalating family conflict by using the adversarial process to decide parenting schedules for two sufficiently fit parents. For those parents who don’t fit this category, in which there are health and safety issues, the courts should become more skilled and spend more time on these cases.   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, developed methods for managing high-conflict disputes, and has taught professionals in the U.S. and more than ten countries. He is also co-host of the popular podcast, It’s All Your Fault, and writes a popular blog on Psychology Today.