Over a lengthy professional career specializing in family law, I have been involved in a number of cases that could be labeled “high-conflict” divorces. These types of conflicts appear to be more prevalent in family law matters than other types of litigation.
Characteristics of a high-conflict divorce are when the parents cannot resolve their differences in either a business-like or amicable manner. Typically, there is ongoing, unrelenting hostility between the parents. In these cases, there are often allegations of domestic violence, physical abuse and/or sexual abuse and the parents lack the ability to communicate about their children and their care. In my experience, in a high-conflict divorce the parents are unable to resolve financial issues including child support; they are unable to reconcile differing parenting styles; they overcome unresolved feelings; and, they are continually positioning themselves to be the “better” parent.
Commonly, in a high-conflict divorce one or both parents suffer from some type of personality disorder. Whether it is diagnosed is of no real significance as what matters are the behaviors that drive the conflict. Typical patterns of dysfunctional behavior in a high-conflict divorce include:
- Fact rearranging. Recasting facts and events in their favor and having a distorted view of reality.
- Black and White” polarized thinking.
- A view of the other parent as incompetent and/or evil.
- Highly exaggerated emotions.
- An inability to understand how they contribute to their own problems.
- Being more comfortable labeling themselves as a “victim” and a preoccupation with blaming others which also presents as a lack of accountability.
In the high-conflict divorces that I have been involved in, frequently the high-conflict personality parent finds a lawyer who is not critical about the client’s allegations, fails to examine the facts and motivations of the client and becomes their negative advocate. It can be challenging for a family law attorney – who is used to adopting and advocating for their clients – to question the information the client presents, particularly a client whose presentation style tends to be highly emotional.
When representing a parent with a high-conflict personality, I have found it imperative to always remain calm and not get caught up in their emotions (this is easier said than done). Be attentive and accessible, particularly when they are upset. Stay focused on only presenting reliable information to maintain the client’s credibility with the court and focus on your client’s strengths. With a client that has a high-conflict personality, clarify expectations and explain reasons why a particular position is being advised. This should be in writing in order to be effectively understood and appreciated.
One of the most difficult challenges for lawyers and judges is to formulate orders that create accountability and consequences in an effort to create the best environment possible to change the behavior of the high-conflict personality parent. This has become more challenging recently as changes to Rules 72 and 74 of the Arizona Rules of Family Law Procedure have taken away a judge’s power to appoint a parenting coordinator over the objection of one of the parties or empower a family law master to make recommendations with respect to legal decision-making or parenting time. However, there are tools and resources available that should be considered, particularly where the clients have resources and therefore are capable of paying for professionals to be involved in helping them pose a solution. This includes the appointment of mental health professionals to provide counselling for one or both parents and for the children. It is important that a different mental health professional be appointed for each parent and a separate one for the children to avoid conflicting roles. The court could also consider appointing a mental health professional as a coparenting counselor. When there are multiple court-ordered therapists appointed, orders need to be entered that allow them to communicate with each other to coordinate treatment objectives. Orders should include a specific statement reflecting the possibility of sanctions for non-compliance to create a financial consequence for inappropriate behavior. Parents can be ordered to complete classes for anger management and where the behavior is also layered with substance abuse, drug treatment and testing can be ordered and parenting time can be conditioned on the completion of programs and testing drug free.
All of us who focus on family law will inevitably face the challenge of becoming involved in a high-conflict divorce driven by a parent or parents who persistently behave inappropriately. Recognizing the characteristics of these disputes, developing effective approaches as an advocate for either the abusive or the abused parent and advocating for the application of resources and a structure that includes consequences gives us the best chance for having a positive impact on the family and creating at least the possibility of helping to manage these conflicts and effectuate real changes in behaviors. Mitchell Reichman