If you and your ex have tried the court-avoidance approaches in chapter 3 without success, you might be in a high-conflict case. While you probably already have a pretty good idea about what it means to be high conflict, this chapter will give you some tools and tips for working through these tough situations.
In this chapter, we’ll provide the legal definition of “high-conflict” cases and explain three specialized tools that can help parents overcome their conflict for the sake of their children, specifically:
- parenting coordinators,
- guardians ad litem (abbreviated as “GALs”), and
- custody evaluations.
We’ll close this chapter with some of our favorite tips for navigating high-conflict scenarios. Let’s start, though, by defining exactly what a high-conflict case is.
What Is a High-Conflict Custody Case?
You could make a pretty good argument that every divorce is high conflict! It’s true that divorce is never an easy situation to experience for any spouse, and it’s even worse for children. But in the event of a high-conflict divorce, children can be absolutely devastated, confused, and torn between their warring parents. Being used as helpless pawns in a fight to the death can leave lifelong emotional scars.
A high-conflict case is characterized more by hostile confrontations than by even-handed or fair negotiations. This can happen when one partner is opposed to shared parenting, wants to win at all costs, or seeks to punish the other spouse. (Sometimes both partners are equally hostile!) Divorces like this tend to go on for what seems like forever, and children are the biggest victims.
Children in a high-conflict case may feel conflicting loyalties as they try to maintain positive relationships with both parents despite witnessing their heated battles or confrontations. Often, children cannot reconcile those conflicts; this can cause a child to feel the need to “choose sides,” resulting in estrangement or alienation from the other parent. Even without losing one parent altogether, children caught in the midst of a high-conflict divorce may be drained by the constant stress, causing a drop in academic performance or a deterioration of social connections.
High-conflict custody cases have many of the same general types of problems that exist in every custody case, but the intensity level is markedly higher. North Carolina General Statute § 50-90(1) defines a high-conflict case as one where the parents exhibit an “ongoing pattern” of any one or more of the following:
- excessive litigation,
- anger and distrust,
- verbal abuse or physical aggression (whether actual or threatened), or
- difficulty communicating about and cooperating in the care of the minor children.
While anger and distrust are common enough in divorce, and many co-parents struggle to communicate and cooperate regarding their children, the key theme for a high-conflict situation is that there is a sustained and ongoing pattern that the parents haven’t been able to work out. Additionally, if there is mental or physical abuse in a relationship, that automatically ramps up the conflict.
But there are tools that can help parents work through these difficult situations. In fact, the entire reason that North Carolina has gone to the trouble of defining these unusually problematic custody cases is so judges know when to bring on these extra tools, starting with parenting coordinators.
Parenting Coordinators
While it’s no secret that custody battles can become adversarial, antagonistic, and hostile, it’s rarely the major, life-altering issues that cause the greatest amount of conflict. Instead, it’s the constant stream of relatively unimportant, everyday logistical decisions that provide a steady supply of fuel for the fire. Parents are more likely to be at each other’s throats over where or when they’re going to meet to exchange the children than they will over important medical and educational decisions.
Obviously, those decisions have to be made, which takes good communication skills and the ability to compromise. But if the divorcing parents were already good at communicating about their needs and compromising on decisions, they might not be getting a divorce! How, then, can parents who no longer love or even like each other learn to cooperate on making everyday arrangements?
This is where parenting coordinators come in.
Parenting coordinators are neutral, well-trained third parties who help parents by teaching them how to make decisions together with a minimum of conflict. This speeds up the resolution of cases and reduces the crushing load on courts and judges by limiting the number of hearings that can otherwise choke the system. Most importantly, lessons from parenting coordinators can reduce stress on the blameless bystanders: the children caught in the middle.
Poor communication is one of the hallmarks of a marriage that ends in divorce, a factor that is doubly present in high-conflict custody cases. Obviously, though, parents who can’t communicate with each other also can’t co-parent their children effectively!
The first goal of a parent coordinator is to help the parents resolve their problems and make decisions related to their children. To do this, the parenting coordinator will work with the parents to frame which issues and priorities they already agree on and which are in dispute. They will then teach both parents communication techniques to reduce the misunderstandings and miscommunications between them. Finally, they’ll work on collaborative decision-making methods. The end result is that parents learn how to express their needs and solve their own problems without the ongoing help of the parenting coordinator.
While parenting coordinators can—and sometimes do—make decisions themselves, their real goal is to teach the parents how to communicate and negotiate when they’re not there. And they can never decide the fundamental issues of custody, visitation, or support; those decisions are still up to the judge.
How do you get a parenting coordinator to help your family? Typically (but not always), the judge will order a family to work with a parenting coordinator after entering a custody order. The parenting coordinator’s job is to fill in the gaps of the order. Alternatively, parents can agree to work with a parenting coordinator. In that case, the court still must appoint the parenting coordinator, but this can happen before the judge has entered an order.
Parenting coordinators must be highly educated and licensed in an associated subject area, such as psychology, social work, or the law. They also must have at least five years of relevant professional experience and complete another 24 hours of specialized training in childhood development, the dynamics of high-conflict families, the stages and effects of divorce, problem-solving techniques, and mediation skills. These requirements ensure that the people who become parenting coordinators are suited by background, temperament, and training for this exceptionally important and impactful work.
The ultimate aim of parenting coordinators is to protect children by reducing their families’ conflict levels and ensuring that parents follow court orders. They also can be called by the court to testify about anything they’ve observed during their work. Neither parent has any privilege protecting the confidentiality of their conversations with a parenting coordinator. The parenting coordinator will not “take sides” with either parent in a case. Hopefully, it goes without saying that you should cooperate fully with a parenting coordinator. Try to leave your emotions at the door and learn as much as you can from this skilled facilitator.
Parenting coordinators can be incredibly effective, efficient, and beneficial to everyone involved in a high-conflict custody case. They combine collaborative teaching and consensus-building skills with the authority and ability to make difficult decisions when necessary. They provide immediate relief from critical issues by offering short-term solutions, while also providing lasting aid by teaching the parents the skills they need so that they, and their children, can have a more hopeful and harmonious future.
Guardians Ad Litem (GALs)
While most custody cases won’t involve these specialized volunteer advocates, the court can appoint a Guardian ad Litem (GAL) to investigate a case where there has been an allegation of child abuse or neglect. GALs represent the best interests of the child and make detailed reports to the court about what they believe will best serve the child.
Volunteer GALs investigate cases by reviewing school and medical records, observing the child in different environments, and interviewing children, siblings, parents, teachers, counselors, and other involved family members and professionals. They undergo extensive training so that they are prepared to gather these types of information about the child, which they assemble into reports for the court. GALs can come from any profession or educational background. Note that in North Carolina, there are also attorneys who are referred to as GALs. In some states, like Virginia, only attorneys can serve as GALs; non-lawyer volunteers in other states may be known by a variety of other titles.
Again, GALs aren’t appointed in the majority of custody disputes. We mention them here because you may find yourself speaking with a GAL if the Department of Social Services becomes involved in your child’s custody due to a claim of child abuse or neglect. As with parenting coordinators, nothing you say to a GAL is private or privileged. The volunteer is not on your side or the other parent’s side; he or she should only be on your child’s side. Remember that every detail of your behavior may be catalogued for the court in the GAL’s report, so be mindful of how your actions will look in black and white. Do your best to cooperate with your child’s GAL and make yourself available for home visits or interviews as requested.
Custody Evaluations
A custody evaluation is a comprehensive assessment of your child’s mental health, developmental needs, and relationships with each parent. Ideally, a single mental health professional completes all the needed evaluations, which may include evaluations of both parents, to ensure a uniform standard and continuity.
Parents may agree to a custody evaluation if they both believe it will help resolve their custody dispute. If only one parent is interested in a custody evaluation, that parent can ask the court to require the examination. In that case, the court can appoint a psychologist of its choosing, who will advise the court of the results.
Bear in mind that there is a potential expense associated with having a custody evaluation. If you are hiring your own custody evaluator, interview prospective evaluators carefully and make sure you understand their fee schedules. You may work with any qualified mental health professional, whether you choose a psychiatrist, a psychologist, or a social worker. We have found that the training and ideological background of the evaluator matter less than the evaluator’s understanding of children and family dynamics.
Often, parents find that they learn a great deal about themselves and their child after completing the custody evaluation process. Sometimes, that new information allows parents to reevaluate their own positions and accept the recommendations of the evaluator instead of leaving the ultimate decision up to a judge. A good custody evaluation can encourage settlement rather than litigation by providing an informed, neutral professional opinion about what’s good for your child’s mental health and development.
Speaking of avoiding litigation, let’s look at a few tips for minimizing the damage to your children during a high-conflict divorce.
How to Protect Your Children During a High-Conflict Custody Case
Some say that while marriages come and go, high-conflict divorces last forever. While this isn’t entirely correct, there’s no doubt that the effects of a heated divorce may be lifelong for all parties involved, especially for the children caught in the middle. If you can’t avoid a high degree of conflict in your custody case, at least do your best to shield your children from it with these tips.
Try to avoid litigation. Litigation rarely de-escalates conflict. Instead, it generally encourages a heated battle and makes children feel that they must choose sides. Litigation is a last-resort option that you should consider only when you’ve exhausted every other option.
Seek co-parenting counseling. Wherever you are in your relationship, getting help from a neutral third party, like a co-parenting therapist or counselor, can help you, your ex or soon-to-be-ex, and your children learn how to communicate better and adjust to the inevitable lifestyle changes.
Remember to keep your child’s best interest at heart. Leave your personal feelings about the other parent at the door when you’re talking about the children. Regardless of how you feel, try to trust that both of you are putting your child’s best interest first.
Keep your children informed. Don’t get so caught up in your own drama that you forget the turmoil your kids are going through! Make sure they know how the changes in your relationship are going to affect them. They should never have to wonder whose house they’re sleeping at tonight or who’s picking them up after school.
But don’t drag them into the middle of your collapsing relationship. That said, you shouldn’t discuss the details of your divorce or your custody dispute with your children. In particular, never bad-mouth the other parent in front of your children. Remember that the ex is still your child’s parent, and your child should maintain healthy, loving relationships with both of you. Don’t put your child in the impossible position of having to choose between believing you or defending the other parent.
Needless to say, divorce can be a mess, especially when there are kids involved. When you add warring parents with high levels of conflict, that mess can turn into a disaster. Remember that your conflict risks permanent damage to your children and to your relationships with them. Keep your children and their best interests at the center of every decision you make. Also, bear in mind that your children will be grieving the loss of their parents’ relationship in their own way. They may need assistance in coping with the demands of a high-conflict divorce as well as the changes it brings.
Finally, please don’t try to resolve a high-conflict divorce or custody battle on your own. While many parents in less-strained relationships can reach their own custody or separation agreement, high-conflict cases require a lawyer’s mediation skills and knowledge of the law.
In the next chapter, we’re going to look at another topic that can create conflict even where there wasn’t any before: when one parent or the other relocates away from the family home.
