Child Rep/Gal Seminar: July 15, 2015
Are These Kids Doomed?: Toward a Model of Best Practices
Kathryn Somers, J.D., M.A.
John Palen, Ph.D., L.C.S.W.
Introduction
 We all understand by now that the children who suffer the
most are those who endure the unrelenting stress of their
parents’ high conflict divorce.
 Our task or our job is to protect them from exposure to their
parents’ poor behavior.
 We are here to talk about procedures to put into place that
will make us more effective as we do so.
Assumptions
 That “HC” precludes some form of joint custody and/or
shared parenting.
 Research repeatedly reveals that children do well when
they enjoy the maximum participation with both “good
enough” parents.
 That all clients who come to you are “high conflict”. We
SAY that they are high conflict when perhaps the main
or primary conflict is that of developing a parenting plan.
HC: Umbrella Term
 Involve 10 % of cases; take up 90% of the court’s time.
Can include the following:
 High rates of litigation and re-litigation
 High degrees of anger and distrust
 Great difficulty communicating about the kids
 Serious DV issues, perpetuated primarily by one abusive
spouse and continuing after separation.
 Alienation of the child as a result of the conduct or attitude
of one parent
What’s this thing called “High
Conflict”?
 Not all “High Conflict Families” are created equal
 The concept of “High Conflict” – often used in a
vague/undifferentiated way by mh, lawyers and judges
 Must differentiate between the types of HC cases at the
beginning of a case. Is it due to?
 poor communication
 domestic violence (requires further differentiation):
separation induced/situational, or long history of abuse?
 Alienation (and if “alienation,” is it REALLY alienation???)
Not Doomed!
 Not if we do an assessment (TRIAGE) at the beginning of the
case. Unfortunately, by the the time a child rep or GAL is
appointed damage has already been done.
 Now the ? – how to ameliorate that? How to undo the
damage after a one to twelve month delay between filing
and appt. of child rep/gal.
 Child rep needs to be strong, aggressive and have
authority. Explain role to parents and child clearly, and
have visits with the child that are evenly balanced between
parents.
 Need to ask:
What type of conflict is it, and where do we send them?
Types of Conflict
 Need to distinguish: to explain which types are “normal
high conflict” (both parents remain actively involved in
kids’ lives) and which types signal significant pathology
that may require one or both parents to have treatment
and/or their involvement with children reduced.
 Domain Dimension: The What.
 Tactics Dimension: The How.
Different Levels of Conflict
 Can occur at three levels:
 External
 Interactional
 Intrapsychic
Different Degrees of Conflict
 Minimal
 Mild – disputes about the parenting schedule, philosophies,
etc.
 Moderate to Severe: Child is not in danger physically but is
experiencing emotional trauma: parents threaten violence,
slam doors, throw things, threaten harm or kidnapping,
engaging in continued litigation, and attempting to have
child align with him or her.
 Severe: involves endangerment of a child or parent by
physical abuse, sexual abuse, drug or alcohol abuse, and
alienation (continuum: affinity, alignment, estrangement,
alienation).
Assessment. Assessment. Assessment
 Clinically important to distinguish between these types of
cases*
 Doing so determines the most useful intervention
strategies
 Also crucial to distinguish between bilateral and
unilateral conflict.
Ask….
 Who or what is driving the conflict?
 What are each parent’s contributions to the ongoing
hostility and re-litigation?
 Has either parent dis-engaged from the other?
 Can either parent change his or her behavior?
 Who are the “silent” players: Tribal Warfare (friends,
extended family, therapists -well-intentioned but potentially
lethal.
Explanations of Conflict
 1. Power differentials – can be related to gender,
financial advantage. Operating assumptions going into
a divorce: Dad’s own the money; Mom’s own the kids.
 2. Fueled by adversarial nature of legal system and by
procedures and practices of lawyers
 Eg. Filing affidavits and other docs in support of their
positions. Much hyperbole.
 Can exacerbate and perpetuate conflict
** Can create enemies out of spouses who were otherwise
functioning well or “well enough.”
 Divorce is only a word. It involves a multitude of losses
that people defend against in many ways. The
adversarial system stokes the flames of the anger,
thereby preventing or postponing a person’s ability to
mourn the many losses inherent in divorce.
 Much easier to experience anger, than to experience a
sense of rejection, hopelessness, fear, sadness and an
impaired sense of self.
 The process also stirs up feelings among the professionals working
with these families. Our job as Child Rep/GAL is to be aware of the
ways in which our own histories and vulnerabilities may resonate
with those of our clients. And, also to be aware of when this is
occurring with the parents’ attorneys.
 Are the attorneys over-identified with the parents; is their something
about the case that is stirring up their own issues of losses and
narcissistic injuries?
 Important to avoid acting out with or for our clients.
 Therapists are hopefully trained to understand countertransference,
but even we, on occasion, succumb to our blind spots. Examples…
Conflict - Continued
 3. The conflict that existed prior to the divorce continues
during the divorce and afterward
 4. The conflict may originate out of emotional responses
to feelings of abandonment, betrayal, anger, hurt or
humiliation
 Individual psychopathologies may play a role – aspects of
the divorce resonate with long standing vulnerabilities.
Further Refinement:
 Also must differentiate between cases where one parent
is the primary instigator for the conflict or abuse
 And those where both are equally responsible.
Differentiation would allow for:
 Some form of shared parenting in some cases
 And would identify the more toxic levels of conflict in
families where there are more serious allegations, i.e.,
 Alienation
 Domestic violence
that require greater restrictions on abusive parent’s time with
his/her children
It’s a TEAM effort
 Conflict that involves violence or alienation requires
coordination and collaboration between MH prof,
lawyers and judges.
 To coordinate/collaborate we need to better
differentiate levels of conflict….
 Which assists judges in early case management of HC
cases and ultimately aids in decision-making.
All in the eye of the beholder
 Difficult to identify criteria to distinguish between
“normal” conflict and the toxic levels we refer to as “high
conflict.”
HOW?
 Post divorce impasse – leads to toxicity.
 Parents are frozen between their joint life and their
individual life.
“High Conflict” as a Ruse to avoid
Joint Custody
 Trumping up charges as a strategy:
 E.g. Alienation
 Domestic Violence/Orders of Protection
 Refusal to communicate (one parent cannot create
problems with the other parent and then claim custody on
the basis of a lack of cooperation.)
Is it ALWAYS harmful to kids?
 Parental disagreements and conflict alone are not
necessarily harmful to children
 What is critical is how parents express, manage and
resolve the conflict.
 Crucial question:
 Is the child shielded from the disagreements or front and
center?
“Co-parenting and access exchange
conflict.”
 Very different than domestic violence cases
 The conflict is limited to decision-making and parenting
plan disputes
 These parents are likely to be able to engage in some
sort of shared parenting: joint or parallel, with islands of
responsibility.
Parallel Parenting: A Form of Joint
Custody/Shared Parenting
 Gives each parent full control of the child when child is in
residence with that parent
 Divides decision-making between the parents:
 E.g., Mom has medical; Dad has education; Mom picks the
congregation (not the religion); Dad the religious education
classes at the congregation; they alternate having first
choice of activities based on the school calendar.
 Advantage: Neither parent feels dis-enfranchised; eliminates
motivation to re-litigate; keeps father’s involved.
Are we making it worse?
 Turning “normal high conflict” into something that looks
much more dysfunctional over time.
 How? Fueled by the adversarial nature of the legal
system and by the procedures and practices of lawyers.
The concept of “High Conflict” – often used in a
vague/undifferentiated way.
 e.g., documents that can exacerbate and perpetuate
conflict: Create enemies out of spouses who were
otherwise doing well (enough).
Conclusions about Social Science
Literature and Programs
 High conflict language needs to be clearly defined
 Will better enable us to address needs of children and
families
 Distinguish between conflict driven by a genuine desire
to continue a significant relationship with one’s children
vs. conflict characterized by physical and other
controlling strategies
 Leads to very different custody and access interventions
and parenting recommendations
The Take-Aways
 Identification of the conflict leads to appropriate
interventions
 Child rep/Gal partnering with a MH professional
 Careful choice of therapists: Beware of therapists who
align with one parent, don’t meet with both parents,
write letters to the court and offer unsolicited custody
recs.
 Child rep/Gal get control of the conflict and the parties
Case Examples
 Jack and Sally
 Incarcerated Mother
 Shared parenting options (The K case)
 Therapist as touch stone