FAMILY LAW: 3 Theories of the High-Conflict Case
© 2017 Bill Eddy, LCSW, Esq.
I do a lot of consulting to family lawyers and their clients (often on the phone together), as well as many self-representing people in family court cases. These often involve high-conflict custody and access issues, although finances can also be involved. One of the biggest problems I keep seeing is that many family law professionals (lawyers, judges, mediators, evaluators, counselors, etc.) have a presumption in high-conflict cases. Here are the three most common presumptions:
When Person B says Person A is acting badly
1. Equal parent conflict
It’s both! These professionals say. “Both Person A and Person B are acting badly. If one says the other is acting badly, then both parties are relatively equally acting badly. If one is lying, the other probably is. If one is hiding money, the other probably is. If one is abusive then the other probably is too, even if in a different way.”
Many of these professionals began practicing family law in the 1980’s, when the courts starting using mediation services to help resolve parenting and other disputes. Lawyers, judges, mediators and counselors came to see conflict as a “family systems problem” in which both parties contributed. While this is true in terms of how they communicate, the contributions to the behavior problems were not always equal.
Some individuals were, in fact, behaving badly; while some others were not. Sure, they reinforced each other’s behavior by the ways that they communicated. But this didn’t mean that both were alcoholics, or spousal abusers, or child abusers, or alienating the children. There should not be an “equal parent conflict” presumption.
2. Abuse allegations are always true
It’s true! These professionals say. “The first person to say the other is abusive is probably telling the truth. Therefore, when Person B says Person A is being abusive (domestic violence, child abuse, substance abuse, alienation, etc.), I believe it’s true. After all, victims wouldn’t lie about these things. Children don’t lie about these things. Just to be safe, assume it’s true, until Person A can prove otherwise.” This presumption started taking hold in the 1990’s, with the OJ Simpson domestic violence/murder case. The Violence Against Women Act came into being and allegations of domestic violence became raised in approximately half of contested parenting matters.
I have had cases in which I heard the words above stated in family court and out of court. To be fair, safety comes first and domestic violence is a real problem. But I believe (and I teach judges) that protective orders can be made while also acknowledging that the judge does not know all the facts of the case and will not make a presumption about what is really going on – but can still make protective orders based on the face of the pleadings and/or testimony.
When a judge, lawyer, mediator or others say that she or he cannot make a presumption to fully know what is going on, it keeps the conflict calmer and increases the chances of getting good information at future hearings which will be considered with an open mind. There should not be an “always true” presumption.
3. Abuse allegations are always false
It’s false! Some professionals say. “Person A is not being abusive, is not acting badly at all and has been wrongly accused. Person B is, in fact, acting badly and making false allegations about Person A. Person B may also be engaged in abusive behavior (domestic violence, child abuse, substance abuse, alienation, etc.) and “projecting” their bad behavior onto Person A. After all, most people in family court making allegations of abuse are just trying to get an advantage, either in parenting, finances or both.” This presumption started occurring in the 2000’s.
I have also heard these statements above in some cases. To be fair, there are many false allegations made in courts (and politics and in the news) to get an advantage. But again, it’s important for legal professionals to keep an open mind and to treat clients with respect, regardless of which side they are on regarding the allegations.
Just saying that you may never know for certain what is going on and that you will approach the case with an open mind, really helps people who may be telling the truth but are used to being discounted. Professionals can say: “You might be right. Or the other person might be right. I’m not deciding who is a good person and who is a bad person. Let’s focus on the facts and avoid emphasizing the emotions—which are always strong no matter whether the allegations are true or false.” There should not be an “always false presumption.”
Litigation: A Single Theory Process
Family courts are based on the traditional model of litigation: There is a Plaintiff and a Defendant, or sometimes a Petitioner and a Respondent in some states. When an allegation is made, the whole system focuses on determining whether that allegation is true or false. This means that the spotlight is on the Defendant to prove their innocence and the Plaintiff to prove their guilt. This is often based solely on who is believed to be lying and who is believed to be telling the truth.
But litigation is poorly designed for family issues, for several reasons:
A. There should be several theories considered, not just one “issue.”
B. Family systems cloud and distort information to maintain the family system, so that even children say what they think the power structure of the family wants them to say, rather than objectively describing their family dynamics.
C. Many family members honestly believe false information, so that determining who seems to be lying and who seems to be telling the truth doesn’t help when someone is honestly distorting information and honestly believes things that are not true.
In all research there is a concern about confirmation bias. This means that if you have one theory of the case, you will “confirm” your theory: focusing on the information that seems to fulfill your theory; ignoring or minimizing information that contradicts your theory; and missing other information that may seem unrelated but is actually a better explanation than your theory.
Here is an example in child sexual abuse allegation cases, which courts still have a great deal of trouble sorting out. Fortunately, cases of child sexual abuse and false allegations of child sexual abuse are rare (combined they are less than 5% of family court cases). But you actually should consider five theories:
- Child has been continually sexually abused by a parent. Now that the parties are separated, this concern has come out. This happens in some cases and has to be considered as a possibility when allegations are raised. Temporary protective orders – such as supervised visitation – can and should be made while this is getting figured out. I have had these cases as a lawyer and as a consultant.
- Child has been sexually abused by a parent just after the separation but not before, because the other parent is no longer there to protect the child. I have heard of these cases, but I have not seen one myself. If a parent has a sexually compulsive behavior it is likely to have existed well before the separation. However, there may have been a vague incident such as bathing, sharing a bed, or some other situation which may actually be sexual child abuse or appear to be. Many family court cases of allegations of child sexual abuse are of this type and should be investigated without presumptions. This type of abuse is rare.
- Child has not been sexually abused, but the alleging parent honestly believes this occurred. I have had these cases and they are very upsetting to both parents. The wrongly accused parent is of course upset at being publicly humiliated. The alleging parent is also very upset because they honestly believe that something terrible has happened and yet nothing is being done. Unfortunately, family courts are not good at figuring out these cases. I have had several as a lawyer and consultant which went on more than a year – including long periods of “no contact” orders – partly because there were presumptions made rather than keeping totally open minds.
- Child has not been sexually abused, and the other parent knowingly made false allegations. I have had a few of these cases as a lawyer and as a consultant. I had one several years ago as a lawyer and we were able to obtain court sanctions for “knowingly false allegations of child sexual abuse” a relatively new part of the California Family Code. Yet again, this case went over a year, with “no contact” orders and extensive evaluations – the cost of which was never reimbursed by the person making false allegations.
- Child has been sexually abused, but by a stranger and not a family member. When I started practicing family law in San Diego, California, there was a high-profile case of this exact type. Almost all professionals presumed the father had abused his daughter and the child was almost adopted out of the family, when new forensic evidence excluded the father and eventually matched a marauding child rapist who had been in the neighborhood that night. The City was sued and settled for a large sum. But the family had been publicly humiliated and moved out of the state.
The point of this article is to keep an open mind, even when abuse allegations have been made. Safety first makes complete sense, yet protection of children can be provided by supervised contact while investigations are occurring, rather than no contact orders.
The price of presumptions can be very high. In some true cases, a parent is not believed, protective orders are not made, and abuse may continue and – in some cases of domestic violence and child abuse – even result in death. In some false cases, a parent is not believed and instead is publicly humiliated and may lose all contact with his or her child for months or years or forever.
As professionals, we need to keep an open mind and treat both parties with respect. It’s often the disrespect against a presumed guilty parent or both parents which creates a hopeless feeling as these cases progress.
If you are a person representing yourself in a family law case, it is important to inform that court that all three of these theories (or 5 in the case of child sexual abuse) need to be considered and you would ask for an open mind as you explain why the evidence fits your theory better than the others. As family law professionals, it is important that we consider all theories of a case, regardless of how little or how much experience we may have.
Bill Eddy is a lawyer, therapist and mediator. He is the President of High Conflict Institute