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Settling Parenting Disputes at Court? Fuggedaboudit.

February 5, 2015

In the midst of parental separation feelings run high. If there are complicating factors such as violence, abuse and infidelity, those feelings typically run even higher. To add, if the decision to separate is more one-sided than mutual, the person being left can feel a sense of bewilderment if not abandonment. This too adds to the mix of bad feelings.

Parents in these circumstances are typically in a terrible place emotionally for determining the best parenting arrangement for their children. Knowingly or unknowingly, the children can become the battleground over which the parental score is settled.

As the parents unwittingly settle their score through the children, think one parent isn’t deserving of a relationship with the kids or think one cannot parent or will provide a negative influence and then seek to limit one’s relationship or time with them, the fight is on. The issues of the relationship which led to the separation worsen, further exposing the children to parental conflict. At the end of the day, parental conflict alone is the best predictor in terms of the outcome for children of separated parents. The greater the conflict the worse the outcome.

In a bid to win the day and determine an outcome, parents may turn to the court. In so doing each parent must convince the court that the other is the scoundrel. Each parent, reasonably defensive, must up their claim against the other to countermand the others claims. The court, thought of as an instrument for settling disputes and restoring peace becomes the very structure that creates further instability, chaos and hardening of bad feelings. Pity the children as the conflict inevitably intensifies.

Consider the following:

  • Court action to resolve family disputes typically inflames the conflict underlying parental disputes. Known as iatrogenic effects, this refers to the negative unintended consequences of a well intentioned act. In short, Court produces many iatrogenic effects where the unintended harm to parents and children is at times far worse than the benefit from the well intentioned outcome. Court decisions do not end conflict;
  • Family law lawyers with an emphasis on litigation, although likely well intentioned, are inherently in a conflict-of-interest as their income hinges on your degree of conflict. Generally, the greater your conflict, the greater their income. There is a lower risk for conflict-of-interest with settlement focused family law lawyers particularly those who do not practice litigation. If you use a family law lawyer, choose wisely and retain control of your case;
  • Those settlements reached between the parents themselves tend to last longer and are better followed than those outcomes imposed by a judge or arbitrator;
  • Less than 5% of all family court disputes go to trial, meaning almost all matters are settled along the way by alternative dispute resolution strategies. Given statistically your matter is likely settle in a process other than court, then you may be better off to begin with that process from the start and if you have already started a court process, you can seek to divert it at anytime;
  • If you obtain a custody/access assessment and go to trial, 80% of the time the Judge will order what has been recommended. In the remaining 20% of the time, it is not that the judge will reverse the recommendation of the assessor as that is a rare event; it is that the judge may make some modifications to the recommendations while keeping the intent intact. In other words, custody/access assessments are quite determinative of the outcome of parenting disputes whether you like the assessment or not. If you have an assessment you don’t like, think twice about fighting that in court in lieu of negotiating your own final parenting plan with or without assistance – but likely with assistance;
  • The single best predictor in terms of the long term outcome for children of separated parents is the duration and intensity of ongoing conflict to which the children are exposed or privy. Court is not aimed at reducing conflict what-so-ever. Court is only aimed at making decisions which at times makes relationships and conflict worse;
  • Children are typically better served by parents willing to participate in dispute resolution processes that do not involve court and are clinically focused as opposed to legally (rights) focused;
  • Parenting conflicts are not legal matters. Parenting conflicts are reflections of personal and interpersonal problems which require personal and interpersonal solutions. While judges and lawyers are experts at law, they are not typically experts at parenting conflicts, child development, mental health, drug and/or alcohol concerns or domestic violence. Seek the expert with the appropriate expertise;
  • Court may only be really necessary to keep people safe from harm in the event of truly dangerous or abusive behaviour or in situations where a parent is truly undermining a child’s relationship with the other parent with no hope of change. Not liking the other parent, having different values or preferences and challenges in communication are not addressed in court processes;
  • Concern about mental health, behavior and even drug/alcohol problems can be addressed in settlement focused clinical services outside of court.

In view of the above and with a desire to act in the best interest of children, seek services that are provided with a view to facilitating settlement. Approaches to facilitating co-parenting should have a clinical focus, meaning they are directed to the well being of the children through helping parents address issues that can lead to settlement. Children’s need remain paramount. After all, we all want for our children to grow up well.

Will I offer services that can involve me at court anymore? Fuggedaboudit.

(Gary’s services for separated parents…)

I am Gary Direnfeld and I am a social worker.

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Gary Direnfeld, MSW, RSW

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Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America.

If your relationship is faltering, then set it as your priority.

Read: Marriage Rescue: Overcoming ten deadly sins in failing relationships.

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5 Comments
  1. Another fantastic reminder of the importance of attempting to work things out outside of court. In a recent case there was a lot of blaming going around and finally the parties agreed to give private mediation a shot before going to trial. I’m hopeful that there will be some resolution of major sources of conflict in this case because if not it will be a long and painful trial with plenty of mud slinging.

  2. I have to respectfully disagree with you on this one Gary. Sure there are many cases that are beyond hope, and the court ordered mediator is giving cover to a (pick one) overworked/uninspired/lazy judicial hearing officer who is desperate for someone/anyone to settle their mess, but anecdotally, I will share with you that many such “hopeless” cases just needed to get in front of the mediator, and away from the litigation process with all of the noise and conflict of interest “filter issues” you reference. How many times have you heard the expression in mediation that getting them to the table with a mediator is “half of the enchilada?” There are other factors to look at, I would suggest, that help the mediator determine whether the family in litigation would benefit from mediation.

    • Hi John,

      I am finding your comment a bit difficult to understand as it is written. On the one hand you respectfully disagree with me and on the other hand your comments lends support that mediation, amongst other ADRs would be better, given support for these processes, with which I agree.

Trackbacks & Pingbacks

  1. Yes. They Shoot the Messenger in Child Custody/Access Cases | Gary Direnfeld, MSW, RSW
  2. Shoot the Messenger in Family Courts | Children's Rights

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