The Future of Family Court
Copyright © 2012 Bill Eddy
Published by:
High Conflict Institute Press
7701 E. Indian School Rd., Ste. F
Scottsdale, AZ 85251 USA
www.hcipress.com
All rights reserved. No part of this book may be reproduced or utilized, in any manner or by any means, electronic or mechanical, without prior written permission in writing from the publisher.
Portions of this book first appeared in the author’s book: Don’t Alienate the Kids! Raising Resilient Children While Avoiding High Conflict Divorce (HCI Press, 2010).
First printing: April 2012
HCI Press also publishes books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. For more information on HCI Press products, visit our website at www.hcipress.com.
ISBN-13: 978-1-936268-49-8
ISBN-10: 1-936268-49-3
ISBN: 9781936268504
Library of Congress 2012936211
Printed in the United States of America
CHAPTER ONE | Disorders in the Court |
CHAPTER TWO | Setting Limits |
CHAPTER THREE | Structure and Accountability |
CHAPTER FOUR | The Trouble with Making Decisions |
CHAPTER FIVE | Eliminating the Parent Contest |
CHAPTER SIX | Managing High-Conflict Emotions |
CHAPTER SEVEN | Children’s Testimony |
CHAPTER EIGHT | Parenting Coordinators |
CHAPTER NINE | New Ways for Families |
CHAPTER TEN | Pattern Analysis |
CHAPTER ELEVEN | Training |
CHAPTER TWELVE | Conclusion |
REFERENCES | |
ABOUT THE AUTHOR |
© The New Yorker Collection 2000 by Nick Downes from cartoonbank.com. All Rights Reserved.
THIS BOOK IS DESIGNED FOR family court judicial officers, although I realize it may be read by other professionals and individuals involved in family court themselves. It’s written from my perspective as a family lawyer and mental health professional, and as a trainer of judges in managing high-conflict people in court. I am not a judge and I do not presume to know how to do the difficult work judges do day in and day out. Yet I have represented clients in family courts for 15 years and I have heard many of the concerns of judges in my seminars and private conversations.
The emphasis of this book is to apply lessons learned from the field of mental health to the family court system, especially in regard to working with parents with personality disorders or traits. Prior to my legal career, I was a therapist working with children and their parents in psychiatric hospitals and outpatient clinics. This background has given me a different perspective on today’s families in family court. Yet my emphasis here is on what individual judges can do, rather than recommending sweeping changes in the court system or creating new players in the decision-making process.
From my experience and observations, the majority of families appearing in family court today with high-conflict disputes include one or both parents with a mental health problem presenting as a legal problem. Most of these mental health problems include the following characteristics:
1. The person is not aware that he or she has a mental health problem.
2. The person does not change their dysfunctional behavior, despite feedback.
3. The person “externalizes” responsibility for their problems and feels helpless.
These three characteristics are common for people with personality disorders, although not all people with personality disorders become “high-conflict” people (HCPs). The HCPs are the ones who blame a specific person for their problems and become preoccupied with attacking that person verbally, legally, financially and sometimes violently. They pull others into this blaming process (family, friends, children, therapists, lawyers, mediators and judges), some of whom become their Negative Advocates – people who aggressively defend and justify the HCP’s behavior to others because they are “emotionally hooked,” rather than informed about the situation. For an introductory explanation and four methods of managing HCPs, see my prior booklet for judges: Managing High Conflict People in Court (HCI Press, 2008).
Recent information on personality disorders seems to indicate that they are increasing in society as a whole, and especially with each younger age group. The United States National Institutes of Health (NIH) has completed a large study of over 35,000 people, designed to be representative of the United States population. (This study was not complete when I wrote Managing High Conflict People in Court.) The final results include the following regarding the five personality disorders I consider the “high conflict” personality disorders:
The researchers posed the theory that the higher percentages in the younger age groups and the lower percentages in the older age groups may indicate that personality disorders fade with time. However, that theory conflicts with everything I have learned about personality disorders, which is that they are maintained fairly consistently over the lifetime as are all personalities. In a correspondence with the head of the study, they acknowledge that they do not have any evidence supporting their theory. It would actually take a similar study ten years from now to see if today’s young adults became less disordered as they aged. It is unlikely that another such study will occur.
A second theory is that people with personality disorders don’t live as long. This may be true, because of their increased levels of high-risk behavior, substance abuse, anxiety, depression, suicide, and serious health problems. Yet this appears unlikely to explain the significant difference across the age groups.
The third theory – which I subscribe to – is that personality disorders are rapidly increasing in society, so that each younger generation is growing up with a higher percentage of personality disorders. For example, narcissism is reported as much higher since the 1970’s, according to studies of college students. This may be the result of the self-esteem movement, which encouraged parents and teachers to praise children for being special – regardless of effort or learning skills. Thus, they grew up with a sense of entitlement seriously out of proportion to their achievements. The next generation appears on track to have this problem as well.
“THE MAJORITY OF FAMILIES APPEARING IN FAMILY COURT TODAY HAVE A MENTAL HEALTH PROBLEM PRESENTING AS A LEGAL PROBLEM”
Likewise, our culture has increasingly placed an emphasis on high-conflict behavior in movies, television, video games, the Internet and in the news. While such behaviors are attention-getting entertainment for adults, research suggests that they may become absorbed in personality development for some children. The cultural over-emphasis on violence and litigation as methods of resolving disputes has grown dramatically in the past two decades, so that each generation’s young adults have more and more of these characteristics embedded in who they are. It may be that the characteristics of personality-disordered parents are passing to their children – and that high-conflict cases in family court are contributing to this process.
If so, we may have an opportunity to reduce the risk of more children developing personality disorders as they grow up by making important changes in family court. It appears time to take seriously the impact of personality disorders on the way we manage the adversarial process of family court.
Therefore, in this booklet, I recommend (and predict) two major paradigm shifts for family courts which do not require any changes in laws or procedures, and which judges can immediately implement on their own to make their decision-making more effective, less stressful and more appropriate for personality disorder parents (or any parents). However, these changes will ideally be done throughout a court jurisdiction, so that the expectations, training and shared implementation can make them even easier to apply for judicial officers, saving time and money on a system-wide basis.
These two paradigm shifts are:
• Skills before Decisions (for most cases)
• Behavior Pattern Analysis (for the more difficult cases)
Teaching conflict resolution skills to people with mental health problems before the big decisions are made is an important – and realistic goal – for family courts. People with these problems, including personality disorders, have a narrower range of behavior than the average person, yet the way you handle them can bring out their best or worst behavior.
An important shift in how you handle them is to expect them to learn and practice simple conflict resolution skills, so that they will be able to make more of their own decisions, to cope better with your decisions, and to use these skills in the future with their children and the other parent. This emphasis on conflict resolution skills places a stronger burden on parents to manage themselves and participate in decision-making to their maximum ability, while reducing the workload – and stress level – of the court.
This skills approach is a shift from viewing parents with mental health problems as one-dimensional people, who are incompetent as parents, who can be evaluated as though frozen in time, and who can never change. It is true that these are tendencies of these parents, because of their narrower range of behavior. However, I have learned from my experience working with clients in psychiatric hospitals, in outpatient clinics and in my family law practice, that most people with mental health problems have abilities that can be built upon to resolve most of their disputes – if there is sufficient structure and if they are required to learn and use the proper relationship conflict resolution skills.
Relationship conflict skills are different from pure adversarial skills, which have no concern for the future existence of a relationship between the parties. Relationship conflict resolution skills must operate in the moderate emotional and behavioral range, so that they don’t destroy the underlying relationship. These skills cannot be learned in a primarily adversarial environment and they cannot be learned without being reinforced by everyone around the person. Also, these skills are best taught and practiced in a relationship, so that a generic parenting class or online course may be less effective or insufficient for many of those with personality disorders – although parenting classes or online courses can still be helpful in addition to the skills training I describe.
This book is designed to provide alternatives for “structuring” parents that can be used immediately in your courtroom, as well as proposals that I hope will be applied to court systems over the next decade.
The emphasis on skills for parents will shift the emotional burden from the court to them. Not only will this reduce judicial stress, but it will actually reduce the parents’ stress, as they become more active and successful participants in the decision-making process to their maximum ability (rather than feeling like helpless recipients of justice or injustice), while teaching their children positive coping skills at the same time. My experience shows that parents with mental health problems appreciate learning conflict resolution skills and find that they can apply them in other areas of their lives.
Therefore, I believe the future of family court should provide a structure for parents to learn and use conflict resolution skills – before the big decisions are made. Simply giving them a decision (no matter how well-reasoned) does little to change their lives and often makes things worse, as they negatively prepare for court and negatively respond to the outcome of court decisions. Often the court’s decision is like a speed-bump in their drive to dominate and control what others do. For example, many of the worst custody battles occur after the divorce has been finalized. Some divorces in family court last longer than the marriage! (See example in Chapter Two)
“MOST PEOPLE WITH MENTAL HEALTH PROBLEMS CAN RESOLVE THEIR DISPUTES - IF THERE IS SUFFICIENT STRUCTURE AND THEY ARE REQUIRED TO LEARN AND USE THE PROPER SKILLS.”
A structure that focuses on relationship conflict resolution skills gives parents the opportunity to make their own decisions to their maximum ability, to accept court decisions when the court has to make them, and to resolve conflicts with the other parent and their children as they go forward in their new lives. This point is emphasized throughout this booklet in my suggestions for any courtroom today and proposals for system-wide implementation in the future.