Don’t Forget the Children:Conflict, Not Divorce, is the Enemy

MILFRED “BUD” DALE, PH.D., J.D.

PSYCHOLOGIST & ATTORNEY

JULY 17, 2015

DOUGLAS COUNTY BAR ASSOCIATION

Conflict is the Enemy of Children in High Conflict Families

THE HISTORY OF THE “BEST INTERESTS OF THE CHILD” (BIC) CONCEPT

• NATURAL LAW: FIRST FATHERS, THEN MOTHERS (1860S).• TENDER YEARS DOCTRINE.• EQUAL RIGHTS BROUGHT INDIVIDUALIZED BIC CONCEPT

(UMDA, 1972, FIVE FACTORS).• PRIVATE ORDERING: PARENTAL PREFERENCE RULE RE BIC.

• BIC “PARAMOUNT CONCERN” (18 FACTORS & ALL RELEVANT) PLUS PARENTING PLAN (WHICH REFLECT A BALANCING OF RIGHTS).

Conflict is the Enemy of Children in High Conflict Families

THE HISTORY OF THE “BEST INTERESTS OF THE CHILD” (BIC) CONCEPT

“THE ‘BEST INTERESTS OF THE CHILD’ CONCEPT MUST BE UNDERSTOOD AS A DIFFERENT KIND OF LEGAL PRINCIPLE THAT DEFINES BOTH A TASK AND AN OBJECTIVE. IT PROVIDES A PURPOSE OR OBJECTIVE [WHILE] IT LEAVES A DECISION MAKER THE TASK OF FIGURING OUT HOW TO ACHIEVE THAT OBJECTIVE IN EACH INDIVIDUAL CASE.”

• ROBERT MNOOKIN, CHILD CUSTODY ADJUDICATION: JUDICIAL FUNCTIONS IN THE FACE OF INDETERMINACY, 39 LAW & CONTEMP. PROBS. 226, 231 (1975).

Conflict is the Enemy of Children in High Conflict Families

DISCOVERING CHILDREN WERE AT RISK FOR HARM OR DIRECTLY HARMED.

1975 – WALLERSTEIN & KELLY STUDY: QUALITATIVE STUDY.- INTERVIEWED MOTHERS ABOUT THE CHILDREN.- 1970S/1980S: GENDER WARS (UNPREPARED FOR

“BEST INTERESTS”)- “CHILDREN NEVER LIE” & “FALSE MEMORY

SYNDROME” CONTROVERSIES VERSUS FATHER’S RIGHTS AND PARENTAL ALIENATION SYNDROME.

Conflict is the Enemy of Children in High Conflict Families

THE INFLUENCE OF MENTAL HEALTH PROFESSIONALS:

• “PRIMARY PSYCHOLOGICAL PARENT” AND “PRIMARY ATTACHMENT THEORY” GOLDSTEIN, SOLNIT & FREUD, 1973).

- EMPHASIS ON MOTHER-CHILD (INFANT) RELATIONSHIP.- ATTACHMENT CLASSIFICATIONS (BOWLBY):

SECURE ATTACHMENT VERSUS INSECURE ATTACHMENT – LIMITED IN ABILITY TO PREDICT FUTURES OF CHILDREN.

* MONOTROPY (ONE) VERSUS MULTIPLE ATTACHMENTS.

Conflict is the Enemy of Children in High Conflict Families

RESEARCH ON OUTCOMES

• DIFFERENTIATE “ADJUSTMENT OUTCOME” FROM THE EMOTIONAL “HURT” AND “PAIN” OF THE DIVORCE PROCESS.

• 75% OF CHILDREN ADEQUATELY ADJUST (ABOUT ¼ HIGH CONFLICT).

• JOINT CUSTODY VERSUS SOLE CUSTODY: SMALL STATISTICAL DIFFERENCES IN PSYCHOLOGICAL ADJUSTMENT, BUT EMERGING ADVANTAGES REGARDING “FATHER” INVOLVEMENT AND CHILD SUPPORT.

Conflict is the Enemy of Children in High Conflict Families

“HIGH CONFLICT CUSTODY CASES ARE MARKED BY A LACK OF TRUST BETWEEN THE PARENTS, A HIGH LEVEL OF ANGER AND A WILLINGNESS TO ENGAGE IN REPETITIVE LITIGATION. HIGH-CONFLICT CUSTODY CASES CAN EMANATE FROM ANY (OR ALL) OF THE PARTICIPANTS IN A CUSTODY DISPUTE – PARENTS WHO HAVE NOT MANAGED THEIR CONFLICT RESPONSIBLY; ATTORNEYS WHOSE REPRESENTATION OF THEIR CLIENTS ADDS ADDITIONAL AND UNNECESSARY CONFLICT TO THE PROCEEDINGS; MENTAL HEALTH PROFESSIONALS WHOSE INTERACTION WITH PARENTS, CHILDREN, ATTORNEYS OR THE COURT SYSTEM EXACERBATES THE CONFLICT; OR COURT SYSTEMS IN WHICH PROCEDURES, DELAYS OR ERRORS CAUSE UNFAIRNESS, FRUSTRATION OR FACILITATE THE CONTINUATION OF THE CONFLICT.”

Conflict is the Enemy of Children in High Conflict Families

“HIGH CONFLICT CASES CAN ARISE WHEN PARENTS, ATTORNEYS OR MENTAL HEALTH PROFESSIONALS BECOME INVESTED IN THE CONFLICT OR WHEN PARENTS ARE IN A DYSFUNCTIONAL RELATIONSHIP, HAVE MENTAL DISORDERS, ARE ENGAGED IN CRIMINAL OR QUASI-CRIMINAL CONDUCT, SUBSTANCE ABUSE OR THERE ARE ALLEGATIONS OF DOMESTIC VIOLENCE, CHILD ABUSE, OR NEGLECT.”

• LINDA D. ELROD, REFORMING THE SYSTEM TO PROTECT CHILDREN IN HIGH CONFLICT CUSTODY CASES, 28 WM. MITCHELL L. REV. 495 (2001-2002).

Conflict is the Enemy of Children in High Conflict Families

• SOL RAPPAPORT, DECONSTRUCTING THE IMPACT OF DIVORCE ON CHILDREN, 47(3) FAM. L. Q. 353 (2013).

FIVE FACTORS EXPLAINING CHILDREN’S ADJUSTMENT TO DIVORCE: 1. LEVEL OF CONFLICT BETWEEN PARENTS, CHILDREN’S EXPOSURE TO CONFLICT, AND CHILDREN’S PERCEPTIONS OF THE PARENTS RESOLUTION OF THE CONFLICT.

2. THE MENTAL HEALTH OF THE PARENTS.

Conflict is the Enemy of Children in High Conflict Families

3. INVOLVEMENT OF THE NON-MAIN CAREGIVER (ESPECIALLY IF THAT PARENT HAS BEEN HISTORICALLY INVOLVED AND OFFERS AUTHORITATIVE PARENTING).

4. THE FINANCIAL IMPACT OF THE DIVORCE ON THE FAMILY (UP TO 40% OF THE VARIANCE).

5. THE CHILDREN’S OWN PERCEPTIONS AND APPRAISAL OF EXTERNAL EVENTS (ALSO, MUST CONSIDER PRE-DIVORCE FUNCTIONING).

• DIFFERENTIATING “ADJUSTMENT” FROM “HURT” & “PAIN”

Conflict is the Enemy of Children in High Conflict Families

THE CHILD’S VOICE IN CUSTODY DISPUTES

“LEGAL” CONCERNS:

• CHILD’S VOICE CONFLICTS WITH PARENTAL AUTHORITY & FAMILY AUTONOMY.

• CHILDREN HAVE NO LEGAL STANDING.• CHILDREN “LACK COMPETENCE OR CAPACITY” TO BE A RIGHTS

HOLDER.• CHILDREN LACK THE ABILITY TO ASSIMILATE RELEVANT

INFORMATION.

- MILFRED D. DALE, DON’T FORGET THE CHILDREN: COURT PROTECTION FROM PARENTAL CONFLICT IS IN THE BEST INTERESTS OF CHILDREN, 52(4) FAM. CT. REV. 648 (2014).

Conflict is the Enemy of Children in High Conflict Families

THE CHILD’S VOICE IN CUSTODY DISPUTES

“PSYCHOLOGICAL” CONCERNS:

• PLACES CHILDREN IN A LOYALTY BIND.• IMPOSES UNFAIR RESPONSIBILITIES THAT BURDEN

THEM WITH AN INAPPROPRIATE DEGREE OF POWER.• CHILDREN’S ATTITUDES AND PREFERENCES CAN BE

TEMPORARY AND TRANSIENT.• CHILDREN MAY ALIGN WITH A PARENT TO MANAGE

STRESS.

Conflict is the Enemy of Children in High Conflict Families

THE CHILD’S VOICE IN CUSTODY DISPUTES

• EMPOWERMENT RATIONALE: “VOICE, NOT A CHOICE”

- MOST PARENTS BELIEVE CHILDREN* SHOULD HAVE A SAY IN DECISION-MAKING PROCESSES. (* CHILDREN IN FAMILIES WITH ABUSE, HIGH CONFLICT OR VIOLENCE WANT MORE SAY).

- CHILDREN WHO ARE ALLOWED TO PARTICIPATE SEE THE PROCESS AS MORE FAIR.

- CHILDREN CAN FEEL EMPOWERED BY HAVING INPUT NOT DIRECTLY RELATED TO RESIDENCY & PARENTING TIME (E.G., ACTIVITIES).

Conflict is the Enemy of Children in High Conflict Families

THE CHILD’S PREFERENCES: ENLIGHTMENT RATIONALE

ENLIGHTMENT RATIONALE: “CHILDREN HAVE SOMETHING IMPORTANT TO TELL US THAT MAY CHANGE DECISIONS WE MAKE ON THEIR BEHALF AND THE WAY IN WHICH WE MAKE THEM … DOES NOT NECESSARILY MEAN THAT THE STATED PREFERENCES DETERMINE THE FINAL OUTCOMES. . . . YET SENSITIVE PARENTS FACED WITH SUCH DECISIONS WILL CONSIDER THEIR CHILDREN’S NEEDS, MAY ELICIT THEIR CHILDREN’S CONCERNS, WILL TRY TO ANTICIPATE THEIR CHILDREN’S REACTIONS TO THE PROPOSED CHANGES AND WILL KEEP THEIR CHILDREN’S PERSPECTIVE IN MIND WHEN DEALING WITH THE CHILDREN REGARDLESS OF THE ULTIMATE DECISION (WARSHAK, 2003, P. 374).

Conflict is the Enemy of Children in High Conflict Families

A FINAL WORD ABOUT THE FUTURE & THE BEST INTERESTS OF CHILDREN

“THE FUTURE WILL CHALLENGE US TO REFORM FAMILY LAW TO MINIMIZE DIVISIVE CUSTODY BATTLES AND TO DEVELOP THE LEGAL SYSTEMS THAT HELP CHILDREN AND THEIR FAMILIES THROUGH DIVORCE AND SEPARATION. . . . [W]HATEVER PARADIGM SHIFT OCCURS, WHATEVER DIRECTION THE PENDULUM SWINGS, AND WHATEVER THE PREVAILING SCIENTIFIC AND SOCIETAL VIEWS OF CHILDREN AND FAMILIES THAT WE CHOOSE TO EMBRACE, IF IT DOES NOT REDUCE CONFLICT, IT WILL NOT BE IN THE BEST INTERESTS OF CHILDREN.”

• LINDA H. ELROD & MILFRED D. DALE, PARADIGM SHIFTS AND PENDULUM SWINGS IN CHILD CUSTODY: THE INTERESTS OF CHILDREN IN THE BALANCE, 42 FAM. L. Q. 381, 418 (2008).

Conflict is the Enemy of Children in High Conflict Families

THREE “TAKE-AWAY POINTS”

• DON’T FORGET THE CHILD’S VOICE, BUT IT IS A VOICE, NOT A CHOICE.

• DIVORCE HURTS, BUT IT DOESN’T ALWAYS HARM.

• WHAT IS BEST FOR CHILDREN IS FOUND NOT IN “WHAT” WE DO, BUT IN “HOW” WE DO IT!

Conflict is the Enemy of Children in High Conflict Families

BUD DALE, PH.D., J.D., LAW OFFICES OF BUD DALE, TOPEKA

BUD IS AN ATTORNEY AND LICENSED PSYCHOLOGIST WHOSE WORK FOCUSES ON FAMILIES DEMONSTRATING HIGH CONFLICT. AS A PSYCHOLOGIST, HE OFFERS A BROAD RANGE OF EVALUATION AND THERAPEUTIC SERVICES TO CHILDREN, PARENTS, AND FAMILIES. AS AN ATTORNEY, HIS PRACTICE ENCOMPASSES CHILD IN NEED OF CARE CASES, FAMILY LAW, AND JUVENILE LAW. HE IS A NATIONALLY-RECOGNIZED SPEAKER ON DYNAMICS AND ISSUES IN HIGH CONFLICT DIVORCE AND PARENTAL SEPARATION. HE HAS PUBLISHED ARTICLES ON ATTACHMENT IN CHILD CUSTODY, ATTORNEY-EXPERT RELATIONSHIPS, AND PARADIGM SHIFTS IN CHILD CUSTODY IN NATIONAL JOURNALS. HE SERVES AS A REVIEWING EDITOR FOR THE ABA FAMILY LAW QUARTERLY AND THE JOURNAL OF CHILD CUSTODY, AND ALSO REVIEWS ARTICLES FOR PSYCHOLOGY, PUBLIC POLICY & LAW. IN MAY, 2014, BUD JOINED THE BOARD OF DIRECTORS OF THE ASSOCIATION OF FAMILY AND CONCILIATION COURTS.