Identifying Indicators of High-Conflict Divorce Among Parents: A Systematic Review.

© 2022 The Author(s). Published with license by Taylor & Francis Group, LLC. This is an Open Access article distributed under the terms of the Creative Commons Attribution 1 License (http://creativecommons.org/licenses/by/4.0/), 2 which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
Identifying Indicators of High-Conflict Divorce Among Parents: A Systemic Review January 2024 Advances in Social Work 23(2): 392-408
https://www.researchgate.net/publication/377825072 Identifying Indicators of High-Conflict Divorce Among Parents A Systemic Review

Indicators of Child Victimization in High-conflict Divorce: Interprofessional Consensus Based on a Delphi Panel. Mila Arch, Josue Garcia-Arch, and Noemí Pereda, Universidad de Barcelona, Spain, Vol. 34. Núm. 1. Febrero 2024. Páginas 41 – 46

https://journals.copmadrid.org/apj/art/apj2024a1

High-Conflict Separations and Differentiated Professional Responses – From Confrontational Interaction to Post-Separation Violence and Stalking Anna Nikupeteri and Merja Laitinen Journal Of Divorce & Remarriage 2022, Vol. 63, Nos. 7-8, 506-525 https://doi.org/10.1080/10502556.2022.2157667 © 2022 The Author(s). Published with license by Taylor & Francis Group, LLC. This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
https://www.tandfonline.com/doi/epdf/10.1080/10502556.2022.2157667?needAccess=true

Does Shared Parenting Help or Hurt Children in High-Conflict Divorced Families?

Nicole E. Mahrer, Karey L. O’Hara, Irwin N. Sandler & Sharlene A. Wolchik Mahrer, N. E., O’Hara, K. L., Sandler, I. N., & Wolchik, S. A. (2018). Does Shared Parenting Help or Hurt Children in High-Conflict Divorced Families? Journal of Divorce & Remarriage, 59(4), 324-347. https://doi.org/10.1080/10502556.2018.1454200  

https://www.tandfonline.com/doi/full/10.1080/10502556.2018.1454200

This analysis is divided into two parts, studies of the effect of conflict on children in intact and divorced families, https://isteam.wsimg.com/ip/e3ad2a50-16e0-4d68-a38f-4966fa9614db/IMG_2338.jpg/:crt:0%25;I:0%25,w:100%25,h:100%25/rs=w:1200,h:600,cg:true and studies on the impact of high conflict in children of separated or divorced families.

Raschke and Raschke (1979) compared 289 grade school children from intact and single-parent families to test whether family structure made a difference in children’s self-concept (i.e. the child’s own attitude or feeling about himself or herself) and whether children who perceived greater conflict in their families would have a poorer self-concept. The authors found support for their proposition that while children are not adversely affected by family structure, such as living in a single parent family, family conflict can be detrimental to their self-concept. It was not possible to determine whether the conflict perceived by the children was verbal, physical or both, although both kinds of conflict were probably damaging to them.

Emery (1982) reviewed the connections between marital turmoil and behavioural problems in children. How one defined conflict, whether in intact or broken families, was a matter of controversy. Three theoretically relevant aspects of conflict are the form of the conflict (e.g. hitting, arguing, avoidance), the content of the conflict (e.g. sex, child rearing, money) and its duration. Both the amount and type of inter-parental conflict to which the child is exposed would seem to be important determinants of the effect of conflict on the child. Conflict that is openly hostile exposes the child to more, presumably problematic, parental interactions, as does conflict that lasts for a long period of time.

Emery concluded, in part, that marital turmoil is more strongly related to boys’ than girls’ maladaptive behaviour, with the caveat that girls are likely to be just as troubled by marital turmoil as boys, but may demonstrate their feelings in a manner more appropriate to their sex role, by becoming withdrawn, for example. The age of a child did not appear to be an important determinant of the effects of marital turmoil. An especially warm relationship with at least one parent can mitigate, though not eliminate, the effects of marital turmoil on children. There was some evidence that changes in discipline as a result of divorce led boys, especially, to be less compliant with parental commands than children in intact families. Emery summarized that parents involved in conflict with each other are probably poorer models, are more inconsistent in their discipline, and place more stress on their children.

Camara and Resnick (1989) studied a sample of 82 families, including divorced and two-parent families. The study used a composite of inter-parental conflict made up of seven ratings: the degree of positive affect expressed by the father towards the mother, the degree of positive affect expressed by the mother toward the father, the degree of negative affect expressed by the father towards the mother, the degree of negative affect expressed by the mother toward the father, the degree of hostility and anger in the home, the extent to which conversations between parents were stressful or tense, and the degree of both overt and subtle conflict in the relationship. Even three years after the separation of the parents, there were significant differences in social behaviours among groups. Children from divorced families showed the highest levels of aggression and behavioural problems and the lowest level of pro-social behaviour and general self-esteem. However, the results for both divorced and non-divorced families regarding conflict resolution were similar. Parents who reported their spouses using verbal attack, avoidance, or physical anger in resolving disagreements tended to have lower levels of cooperation and higher levels of conflict. The outcomes of disagreements were more likely to result in an escalation of the conflict. Parents who were able to compromise in resolving conflicts were more likely to cooperate on parental issues. Therefore, regardless of the level of conflict between the spouses, cooperation between the adults in their parental roles was associated with closer, warmer, and more communicative relationships between children and their non-custodial parent in divorced families and between children and their mothers in non-divorced families.

Morrison and Coiro (1999) examined two hypotheses. When there is high conflict in a marriage, do children whose parents divorce exhibit a decrease in behavioural problems, while children whose parents have low levels of marital conflict during the marriage exhibit an increase in behavioural problems after divorce? Do children whose high-conflict families remain together show greater increases in behavioural problems than those whose parents’ divorce? The authors used a sample of 727 children from data in the National Longitudinal Survey of Children and Youth (NLSCY). The authors used responses about the frequency that a spouse argued about nine topics, such as the children, money, chores and responsibilities. They found that prior reports of high levels of marital conflict had a large and statistically significant, adverse effect on children’s behavioural problems. Indeed, the adverse effect of frequent marital quarrels was greater than the deleterious effect of separation and divorce. However, there was no indication of a benefit to the children who left the high-conflict family. Furthermore, the greatest increase in behavioural problems was observed among children whose parents remained married despite frequent quarrels.

Conger, Harold, Fincham and Osborne (1998) conducted two studies to simultaneously examine direct and indirect links between marital conflict and child adjustment, incorporating children’s perceptions of the family relationship in examining these links. In both studies, the hypothesis that marital conflict influences perceptions of parent-child relations was supported. Children who have witnessed inter-parental hostility appear to interpret parent-child conflict as more hostile and threatening than children who have not witnessed such conflict. The authors stressed, however, the need for longitudinal studies in this area.

Jekielek (1998) used data from a longitudinal study (the National Longitudinal Surveys of Youth) involving a sample of 1,640 children to examine the effects of marital conflict and marital disruption on children. The results suggested that both parental conflict and marital disruption are critical predictors of children’s emotional well-being. The benefit of an intact family status for child anxiety and depression decreases as parental conflict increases. Parental conflict had a consistently significant negative impact on child anxiety and depression four years later, suggesting that parental conflict has enduring effects on child well-being. Children whose parents were in higher conflict in 1988 but had divorced or separated in 1992 scored lower on scales of anxiety and depression than children whose parents reported similar levels of high conflict in 1992 and stayed married.

Shaw and Emery (1987), in a study of 42 separated mothers of low economic status and their school-age children, concluded that the level of parental acrimony was related to children’s behavioural problems. The level of acrimony was measured by an “acrimony scale” consisting of 25 areas of potential conflict between separated or divorced parents, including visitation, custody, and general level of animosity. Parental acrimony was found to be significantly related to children’s perceived cognitive competence.

Nelson (1989), using a sample of 121 divorced families, asked whether the type of custody predicted levels of hostility, conflict and communication between parents two to three years after the conflict. The purpose was to test the hypothesis offered by proponents of joint custody, namely, that joint custody arrangements would be predictive of more frequent communication between parents and of lower levels of hostility and conflict two to three years after separation. The finding was that, while joint custody promoted greater access to the children and therefore more parental communication, parents also experienced greater hostility and conflict in their relationship.

Mathis (1998) investigated why certain families seemed to fail in mediation and concluded that failure was approximately 75 percent higher in situations when one or both parents remained “undifferentiated” from the other and still thought of the other parent as “we” instead of “you and I.” In other words, these parents often could not accept the dissolution of the marriage and still wanted active involvement with the other parent. The more differentiated parent, the one who had been able to establish a self-sufficient life after divorce, often resented the intrusion by the other parent and became less cooperative and more hostile.

Madden-Derdich, Leonard and Christopher (1999) designed a study to determine if high levels of conflict may be attributable to the difficult task for divorcing couples of being unable to relinquish their marital roles and still find effective ways to parent together. The idea is that the failure to establish relationship boundaries that clearly define the former partner as a co-parent but not as a spouse is a major source of post-divorce conflict. A random sample of 180 recently divorced couples was used. For both mothers and fathers, those who reported more ambiguous relationship boundaries with their former spouses also experienced a higher level of co-parental conflict. However, mothers’ and fathers’ views about the predictors of boundary ambiguity in the post-divorce period differed. For mothers, the level of emotional intensity toward the former spouse (i.e. feelings of love or hate) and power and control variables (e.g. financial strain) were predictors of boundary ambiguity. For fathers, however, only the level of emotional intensity towards the former spouse was such a predictor.

Johnston, Kline and Tschann (1989) examined the relative levels of communication and conflict between parents in litigating families who had been unable to settle their differences within one to four years after the legal dispute. A sample of 100 children was used. The Strauss Conflict Scale, comprising 18 behavioural items, measured parental conflict. The verbal aggression scale included insults, swearing, sulking, stomping out, doing something to spite the other, and threatening to strike. The physical aggression scale included throwing or smashing objects, pushing, slapping, kicking, beating up, and threatening with or using a knife or gun. Thirty-five of the children were in joint custody and 65 in sole custody at the follow-up. While there was no clear evidence that children were better adjusted in either type of custody, joint custody was highly related to more frequent access. The authors found consistent evidence that children who had more frequent access were more emotionally troubled and behaviourally disturbed. Children who shared more days each month with each parent were perceived by their parents as being significantly more depressed, withdrawn and uncommunicative, and more aggressive. Older children were more enmeshed in parental conflicts. This was consistent with previous analyses which showed that as children develop the cognitive capacity for self-reflexive thinking and perceive the opposing views of their disputing parents, they become more vulnerable to acute loyalty conflicts.

In contrast, Bender (1994: 127) argued that even when parents are in high conflict, there is a case to be made for joint custody:

Research has shown that the relationship which the child had with each parent was much more influential in predicting successful adjustment outcomes, than was the quality of the relationship between the parents. Consequently, even if the parents are “warring” on each other, if both retain a relationship with the child, the child should be afforded the adjustment opportunities of good relationships with both parents.
Bender (1994) believed that detailed joint custody agreements, which left little or nothing to negotiate, actually tended to reduce stress and that both parents were likely to demonstrate high levels of cooperation when detailed agreements were written. He therefore stressed the importance of detailed joint custody agreements in high-conflict situations.

Ayoub, Deutsch and Maraganore (1999) examined the factors that contribute to the emotional distress of children in high-conflict divorce from the perspective of a guardian ad liter (GAL). Sample data from 105 children were collected from GALS, who are frequently appointed in high-conflict cases. High conflict was coded for the following criteria: a history of chronic and/ or forceful domestic violence or parent-to-parent physical abuse; police or protective services involvement in domestic disputes; hospital visits for injuries stemming from violence, murder, threats of suicide, extensive degradation of one parent by another; and rigid inability to discuss the children and their well-being. Medium inter-parental conflict was coded for any of the following criteria parents are generally disrespectful, engage in name-calling and insult each other in front of the children, and parents are hostile toward each other but less deliberately (less pre-meditation and sadism) or less frequently than parents in high conflict. The study revealed that children in families with high marital conflict are more likely to have high levels of emotional distress. In the face of considerable marital conflict, exposure to child maltreatment alone does not significantly increase the child’s emotional distress. However, when coupled with the experience of witnessing domestic violence, the presence of additional forms of child maltreatment results in a significant increase of symptoms of emotional distress in the child.

Schmidtgall, King, Zarski and Cooper (2000) examined, in part, whether there was a relationship between parental conflict and the prevalence of depression for women who experienced parental conflict. The sample was made up of 52 female undergraduate students in a midwestern American university. The results indicated that perceived conflict in the divorcing family was related to symptoms of depression for women in their adult years. As ratings of perceived conflict increased, reports of depressive symptoms also increased. However, the study noted that there were also other factors that contributed to women’s symptoms of depression.

Johnston, Campbell and Tall (1985) used data on 80 divorcing families with 100 children to develop a typology of factors contributing to impasse in divorce. At the external level are unholy alliances and coalitions-the dispute can be solidified by the support of friends, kin and helping professionals. These unholy alliances and coalitions include extended kin involvement and tribal warfare, when the extended family (such as the spouse’s parents) took it upon themselves to right the wrongs of the separation; coalitions with helping professionals, in which alliances with therapists and counsellors fuelled the fight; and involvement with the legal process where, for example, adversarial attorneys take on the case and engage in tactical warfare with each other. Interactional elements include the legacy of a destructive marital relationship, in which each spouse while married had come to view the other in limited, negative terms; and traumatic or ambivalent separations in which the ex-spouses view each other in a polarized negative light or seem to maintain an idealized image of the other and are engaged in a never-ending search for ways of holding together their shattered dreams. Intrapsychic elements include the conflict as a defence against a narcissistic insult, where the central reason for the dispute is to salvage injured self-esteem or more primitive narcissistic grandiosity; a defence against experiencing a sense of loss, to ward off the emptiness that came from relinquishing each other; a need to ward off of helplessness brought about by the desertion of the other spouse; and disputes that were a defence against the parents’ guilt over feeling that they could have tried harder to save the marriage. The majority of parents in this study presented traits of character pathology, some clearly having personality disorders. In these cases, the motivation for the dispute derived more from their enduring personality characteristics, such as a need to fight, than from the experience of separation or the needs of the child. The children in these families took on a magnified importance because their parents got a great deal of emotional support and companionship from them.

Whiteside (1996) conducted a review of the literature concerning the custody of children five years old and younger. He pointed out that many divorcing couples experience disagreement, tension and hostility, particularly during the first two years after separation. Yet, it is the interaction within chronically high-conflict divorced families that causes the most concern. These interactions are characterized by frequent arguments that are not effectively resolved, blaming, incidents of physical attack, denigration and sabotage of the other parent’s relationship with the child, unclear boundaries, low parental esteem, and neglectful or rigid and authoritarian parenting styles. He argued that, ideally, studies should incorporate multiple dimensions of conflict, but many focus on only one aspect of it. The review considered various studies on the frequency of conflict, the content of conflict, the exposure of children to the conflict, the mode of conflict expression, and conflict resolution patterns. Some studies found that a higher incidence of conflict characterizes the post-divorce parenting of younger, as opposed to older, children, although given the small number of studies on this topic, it is difficult to evaluate the strength of this association. More important than the frequency of disagreements is the level of emotional hostility characterizing the disagreements. In general, researchers found that parents who engage in verbal attacks or physically violent behaviour against their former spouses risk a higher incidence of poor child adjustment. The review also considered the literature concerning the impact of parental conflict on children. One review of the literature concerning the impact of marital conflict on children’s functioning in married families concluded that children exposed to frequent and intense parental conflict experience a chronic stress level and may develop feelings of helplessness about their ability to positively affect events. Spousal conflict seems to be associated with certain negative emotional states in the parents, such as depression and anxiety. These emotional states may limit paternal and maternal abilities to be nurturing and responsive to their children. The author hoped that future research would shed light on the complex interrelationships between parental conflict, parental levels of individual psychological adjustment, parenting competence, and the child’s psycho- social adjustment.

In short, the literature indicates that parental conflict is a major source of harm to children, whether the children are in intact families or their parents have separated or divorced. Children whose parents have separated or divorced where there is a high level of conflict between the parents display greater behavioural problems than children from low- or medium-conflict divorced families. However, serious questions remain.

Many jurisdictions have created statutory procedures in their equivalents to our Divorce Act, whereby the parents of children in a divorce action agree to a parenting plan in which the duties and obligations of parents for taking care of the children of the relationship are set out and must be followed by the parties. This is covered in more detail in the next section of this paper that examines the law in foreign jurisdictions. However, it is important for our purposes to note that experts in high-conflict divorce see a need for greatly detailed, highly structured parenting plans that minimize the possibility of conflict between the parents. For example, Ehrenberg and Hunter (1996) studied a sample of 32 separated or divorced spouses split equally between those who agreed on a parenting plan for their children and those who disagreed. Compared with parents who disagreed about parenting arrangements, ex-couples who were able to maintain mutually-agreed-upon parenting arrangements were generally less narcissistic, less interpersonally vulnerable, more empathetically inclined, less self-important, less self-oriented and more child-oriented. Arguably, if high-conflict couples are less able to agree on a parenting plan, then additional mechanisms are needed to ensure their compliance with the plan as well as to minimize the extent of their conflict when caring for the children.

Garrity and Baris (1994: 101-120) argued that high-conflict divorces necessarily have complex dynamics. Therefore, issues in high-conflict divorces cannot be resolved through mediation. An arbitrator in some joint-custody situations or a guardian ad litem in other situations may help resolve specific issues. However, in many high-conflict situations, no professional is appointed. Therefore, a parenting coordinator is needed in high-conflict situations, one who is experienced in problem resolution, mediation techniques, communication, the legal aspects of divorce, adult psychology, developmental psychology, and children’s adjustment issues that are specific to divorce. The parenting coordinator would have the following responsibilities:

• Creating a parenting plan to contain or reduce interparental conflict.
• Ensuring execution of the residence and visitation arrangements specified in the divorce decree or in temporary orders.
• Monitoring visitation and mediating disputes between parents.
• Teaching parents communication skills, principles of child development, and children’s issues in divorce.
• Exercising the power to modify visitation as a means of reducing conflict.
• Ensuring that both parents maintain ongoing relationships with the children.
• Acting as arbitrator (that is, final decision-maker) on any issue over which the parents reach an impasse (Garrity and Baris, 1994: 120-121).

These authors also produced a table that shows the role of the parenting coordinator for families experiencing three different levels of conflict: minimal/mild, moderate, and moderately severe/ severe conflict. In cases of moderately severe/severe conflict, the table describes the role of the parenting coordinator as someone appointed in the divorce decree who adapts communication techniques to the nature of the impasse; modifies visitation to minimize conflict; recommends supervised visitation when necessary for a child’s protection; recommends full evaluation of one or both parents when necessary (i.e. regarding alcohol use, substance abuse, severe psychopathology); ensures that the child will have contact with both parents; arranges for visitation and devises a communication plan for parental alienation; and meets as often as necessary, typically once a week (Garrity and Baris, 1994: Table 8-2 at 122).

Garrity and Baris (1994: 146) state:

High-conflict couples most frequently fight about the details of visitation, parenting approaches, and the exchange of information about their children. Modifying the way these elements of parenting are carried out can often minimize the children’s exposure to conflict.

Therefore, they offered practical suggestions for minimizing conflict that can be set out in these parenting plans. For example, if both parents can drive, the parents should drive the children to each other’s homes rather than have the other parent pick the children up. This way, one parent does not arrive at the door of the other parent; potentially rush the other parent’s good-byes to the child. Another strategy is to have a written log, perhaps a small spiral notebook, that travels with the child. It can contain information about preferred or disliked foods, medications, and scheduled activities. This approach can be a useful way of exchanging information between parents who are likely to argue during the children’s transitions. If the parents cannot contain their anger during transitions, a neutral drop-off point may become necessary. If conflict remains high, it may be necessary to change the visitation plan, by decreasing the number of transitions and substituting for them a longer visit. Less drastic than a neutral drop-off is the use of some public space, such as a library or museum, to exchange children. Insofar as possible, all exceptions to the basic visitation schedule should be set out in detail in writing. For example, the terms of holiday visits must specify exact times. When parents are unable to celebrate special events peaceably in each other’s presence, it is best to hold celebrations, such as birthdays, in both houses. Ordinarily, children should be allowed to telephone each parent from the other parent’s home and be assured of the privacy of the calls. The parenting plan should specify that parents will not be able to make up time for missed visits. Garrity and Baris (1994: 146-150, 155-161) provide an example of a draft parenting plan in a high-conflict situation.

As Stewart (2001: 34-35) pointed out, the majority of therapeutic interventions reported in the literature are based on small, relatively untested programs. These are clinical initiatives developed from the experience of therapists and counsellors working with divorced and separated families. The small sampling of studies of various clinical programs for separated and divorced parents and children demonstrate several serious design problems. First, small-scale studies make it difficult to draw conclusions about how various models might work with larger interventions. Second, pre-existing family and social factors are usually not analyzed in these studies. Therefore, they do not examine in depth how these families function on a larger scale and how the children of these families function compared to other children in non-divorced families. Third, there is no attempt in these studies to identify the level of conflict in the families and determine how these therapeutic programs help children living through various levels of conflict. Fourth, there is rarely any follow-up of results, and when there is, it is brief. Finally, these small-scale studies do not factor in the effects of other events in a child’s life, such as changing schools, moving to another neighbourhood, missing friends and the remarriage of one or both parents. These clinical studies presume that the only factor that effects positive outcome for parents and children is the therapy offered. According to Stewart (2001), what is needed is a comprehensive research study that begins with an inventory of pre-existing emotional and structural factors.

Stewart (2001:38) pointed out that critics of divorce education programs caution against expecting too much in the way of either prevention or solution to divorce hostilities. Many education programs offer information only about the divorce process, options such as litigation and mediation, and perhaps about some of the associated emotional hazards for children. It is argued that the programs are not truly educational because they do not help divorcing parents learn new skills to deal effectively with their children in their new life situation.

There is some limited information about the effectiveness of parenting education programs. Arbuthnot, Poole and Gordon (1996) designed a project in which 3,658 families who had filed for divorce were mailed an educational booklet that spelled out the major effects of divorce and remarriage on children, and provided practical suggestions for eliminating or minimizing harmful effects, especially parental conflict. Although there were no immediate changes in inter-parental conflict, at the one-year follow-up these families showed more positive communication between the parents. Also, the non-residential parent tended to have greater access to the children than did parents in the control group. However, no conflict in these families was identified, nor was there any identification of stressful factors such as relocation or remarriage. Participants were streamed into this project not by applying any criteria, but on the basis of random sampling (Stewart, 2001: 38; Arbuthnot et al., 1996). Arbuthnot and Gordon (1996) also favourably evaluated a mandatory education class attended by 131 parents, which would appear to have lowered the exposure of children to parental conflict (see also Stewart, 2000: 39).

Geasler and Blaisure (1998) reviewed the status of court-connected divorce education programs in the United States. They pointed out the growing recognition that skills training is essential in parent education to promote effective parenting behaviour. They said that research by Arbuthnot and Gordon shows that skill-oriented classes are more likely to lead to parental behaviour change in co-parenting situations than more passive strategies such as books or lecturing. As a result of skill-based education programs, divorcing parents can increase their ability to choose forms of communication that lessen parental conflict, and these effects are retained at the six-month follow-up. Recent research indicated that overall effectiveness of parent education programs may vary according to the level of conflict that parents report; the timing of a parent’s attendance at the divorce education program; or the content and teaching strategies used in the program. In a 1996 follow-up to a 1993 study that examined the influence of program attendance on rates of re-litigation six years after the divorce, only individual parents who initially reported high inter-parental conflict, triangulation of children, and low levels of adaptive parenting benefited from the program. They experienced a lower frequency of re- litigation than individuals in a control group in another county.

An ongoing evaluation of the “Children in the Middle” programs provided a persuasive argument for teaching strategies as an important variable to consider when assessing the effectiveness of programs. “Children in the Middle” programs emphasize teaching and practicing skills, rather than presenting facts about a number of topics and leaving little opportunity for parental discussion or involvement. The authors concluded that a program focussing narrowly on skills development requires active parental involvement and can provide opportunities for guided co- parenting skill development, that learning and using co-parenting skills has been shown to reduce the possibility of putting children in the middle of parental conflict, but that more research is needed in this area.

The Pre-Contempt/Contemnor’s Group Diversionary Program in Los Angeles County has an educational program specifically designed for parents in high conflict. The goals of the program are to provide parents with information about the effects of divorce and parents’ conflictual behaviour on children, about the law concerning custody and visitation, about the range of child- sharing plans available and the consequences of not complying with court orders, and about the skills needed to improve their communication and resolve conflicts. Judges who order parents to attend make all referrals to the program. Both parents are required to attend. Children are not included. Group sizes range from 25 to 75 persons. There are six sessions, each with a different theme. In the first session, the rules of conduct are established, and a presentation is made about the historical aspects of custody, the role of the different courts, and the emotional, legal and economic consequences of separation and divorce. The session ends with a video emphasizing the children’s need for access to both parents. The second and third sessions focus on the needs of the children, the meaning of their symptoms of distress, their development and parenting-plan options. The remaining sessions provide information about conflict management and effective communication and feature role-playing exercises focusing on negotiation and mediation. Other than consumer satisfaction feedback, this program has not been systematically evaluated (Johnston, n.d.: 27-29).

From January to May 1997, three group cohorts totalling 143 parents attended this Contemnor Program. In the summer of 1997, 45 families who did not attend the program, selected according to the same eligibility criteria, were assigned to a comparison group. At a nine-month follow-up, it was found that both men and women who were in this program, compared to the baseline, were consistently more cooperative, expressed less disagreement with each other, and were more likely to have resolved disputed custody issues with their ex-partner. Also, domestic violence between the parents diminished to a negligible amount. However, there was no evidence that the Contemnor Program reduced litigation rates (Johnston, n.d.: 183-209).

Mclsaac and Finn (1999) created a program for high-conflict parents for the Multnomah County Circuit Court in Portland Oregon. Modeled on the Los Angeles County Conciliation Court’s Contemnor Program, this program was named “Parents Beyond Conflict.” Groups ranged from eight to ten participants, with a total of 26 participants in three groups. They were referred to the program by a judge. The goal of the program was to increase parental empathy toward their children and to help them develop a greater awareness of how their behaviour affected their children. Thirteen of the families were ordered to attend by a judge after many court appearances. Each parent was sent a packet of information about the class, including lesson plans for each of the six lessons. Each lesson was two hours long. The presence of mental illness, alcohol or drug abuse or chronic violence precluded participation in the group. The participants were asked to buy copies of the two texts to be used in the class, Joint Custody with a Jerk and Getting Past No. The first class session established the rules, which included that members of the group would speak respectfully to one another and not speak disparagingly of the other parent. The course emphasized skill building. For example, participants were taught how to deal with problems at a hypothetical level and how to actively listen. All 26 participants found the sessions “very helpful.” After two months, 13 of the highly conflicted parents constructively used the concepts taught in the class. However, the long-term benefits of this training still need to be established.

Baker-Jackson and Orlando (1997) explained the “Parents Beyond Conflict” workshop, used as an intervention in the Los Angeles Juvenile Dependency Court to address high-conflict situations referred to dependency court because of child abuse allegations. The workshop provides parents with information about the causes of parental conflict, the destructive impact of the conflict on children, and the developmental needs of the children and their behaviour under stress. Parents are taught techniques for improving their communications with each other. Techniques in managing anger are provided. Problem-solving skills are demonstrated and domestic violence issues are addressed. Role play is used. Between June 1994 and May 1996, 570 people attended the workshop. The responses by parents, attorneys, caretakers and the judiciary were favourable, with judicial officers and attorneys observing immediate changes in the behaviour of the parents toward one another after completing the workshop.

Kramer et al. (1998) compared “Children in the Middle”, a skills-based divorce education program, with “Children First in Divorce”, a commonly used divorce education program that is not skills-based. They assessed the results of surveys of parents who attended ten classes of these two programs over a two-month period. The authors found that, despite concerns that divorce education programs might increase the frequency and severity of domestic violence, all groups reported decreased violence over time, probably due to a normal reduction in anger post-divorce. Parents with better communication skills experienced a greater decline in domestic violence and experienced less conflict with the other parent, and exposed their children to less conflict. This suggested that teaching communication skills is desirable in divorce education programs.

In Canada, the Clarke Institute of Psychiatry in Toronto operates a “For Kid’s Sake” program. As its Web site[2] explains, the program is a novel group approach to helping parents and children manage post-separation conflicts. Some of the areas of conflict dealt with are disputes about the child’s time with each parent, differences in parenting styles, schooling and extra-curricular activities of the children, and children’s emotional and behavioural development. The program provides separate group experiences for parents and their children over a ten-week period. Parents at first separately attend a series of five group sessions. These sessions have a psycho-educational and therapeutic focus that helps parents better attend to and understand their children’s needs and to understand the difficulties in the parental relationship. Emphasis is placed on helping parents take responsibility for their own part in continuing the dispute. Parents then jointly attend another five sessions in order to negotiate a better parenting plan and/or resolve child-related issues (Clarke Institute of Psychiatry, n.d.).

Stewart (2001: 39) pointed out several problems with these kinds of studies. First, as with counselling programs, these studies do not begin from an established baseline that gives a picture of how the children and parents in these families are coping with divorce before any intervention takes place. Second, even in mandatory programs, there is no sense of the parent’s pre-intervention cooperation. As a result, even in mandatory programs, it is impossible to determine the parents’ level of compliance. Third, there is no attempt to determine levels of conflict between the parents, so it is impossible to measure whether these programs are effective ways to reduce conflict in these families.

It involved interviews with approximately 600 parents in several divorce dispute categories, one group consisting of parents who had divorced without formally contesting custody or visitation, the other group comprising those parents who disputed parenting or visitation and accepted mediation. The third group was comprised of parents who disputed custody/visitation, but did not try mediation. Mediation was associated with a high degree of user satisfaction. Those who had used it recently rated it most favourably. Over time (i.e. four to five years later), reactions were less uniformly complimentary, although still favourable. The authors caution, however, that although associated with some positive outcomes, mediation is not a panacea, especially with respect to its impact on children’s adjustment.

In the early 1980s, divorce mediation was introduced as a popular alternative to the more traditional method of resolving issues of custody, access and support, which usually involved the courts. This was seen as a less expensive, less adversarial and more effective method of helping parents resolve their issues (Stewart, 2001: 36). In some American states, such as Florida, mediation is mandatory. Whether or not mediation works effectively in custody disputes is not known conclusively. For example, a study in Toronto compared couples who mediated custody to those who litigated without mediation. Only ten percent of mediated couples returned to the courtroom after two years with problems related to custody or visitation, compared to 26 percent of the couples who chose not to mediate (Vestal, 1999: 488). On the other hand, Pearson and Thoennes (1984) compared outcomes for 668 couples referred to mediation with 212 who used litigation to resolve custody disputes. Of the families who decided to pursue mediation, 60 percent reached some agreement about their issue, although 40 percent of these families reported a breakdown in the mediated agreement within one year. They concluded that further research was necessary on how to work effectively in mediation with high-conflict couples and on whether the oft-stated goal of mediation, joint custody, was actually a sustainable option for many families (Stewart, 2001: 37). Pearson and Thoennes (1986) also summarized the results of a large-scale empirical evaluation of mediation services in three court-based programs.

Stewart (2001: 37) argued that these and other studies indicate a need for the pre-selection of mediating families. As with counselling and therapeutic programs, further study is needed to investigate how effective mediation works with families struggling with different levels of conflict. Other emotional and structural factors also need to be identified and considered to get an accurate picture of mediation’s potential. Finally, long-term follow-up of these families is necessary. Because of the failure to follow up the studies, it is simply not known how many families who use mediation later return or give up and choose to litigate.

As noted, the usefulness of regular mediation in a high-conflict situation has been doubted. Johnston and Roseby (1997: 230-231) pointed out that mediation, as originally conceived, “is the use of a neutral, professionally trained third party in a confidential setting to help disputing parents clearly define the issues, generate options, order priorities, and then negotiate and bargain differences and alternatives about the custody and care of their children after divorce.” They argued that “”[m]ore than a decade of experience and a number of outcome evaluations have shown fairly consistent findings: 60 percent to 70 percent of mediated disputes result in agreements; of these, 40 percent to 57 percent are full or complete resolutions… But it is not clear that mediation results in significant long-term benefits, in terms of enhanced parent and family functioning.”””

The primary indication for a successful outcome of mediation is parents who, with the mediator’s help, demonstrate the capacity to contain their emotional distress and focus on the children’s issues. However, as Johnston and Roseby (1997: 231) noted, “cases designated as failures of mediation’ have all the characteristics of high-conflict divorce…. The failures have been described as enmeshed and highly conflicted couples who are ambivalent about their separation and have severe psychopathology or personality disorders.” They added: “”In sum, high conflict divorcing families have largely been identified by their failure to make effective use of traditional mediation methods that rely upon a rational decision-making process.”

Johnston and Roseby argue that, in cases of high conflict between parents, a different kind of mediation-“impasse-directed”-is necessary. It differs from regular mediation in three ways. First, this approach brings together therapy and mediation. The rationale is that, until some of the underlying emotional factors that form the impasse between the parents are dealt with, the parents cannot make rational, child-centred decisions. Second, the assumption is that, because of the impasse, the parents have little ability to protect their children from their own personal or spousal problems. Hence, the goal is to educate and counsel the parents about the children’s needs and to use therapy to help the parents manage their family situations. Third, the goal of impasse-directed mediation is not the completion of the access agreement itself. The goals are to develop psychologically sound access plans, to help the family through its divorce transition, and to build a structure to support the parents’ and children’s growth and development (Johnston and Roseby, 1997: 233-234).

Impasse-directed mediation consists of four phases. In the assessment phase, parents are interviewed separately and observed in a structured setting with the child, in order to compile a detailed history and assessment of the family impasse. In the pre-negotiation counselling phase, each parent, in separate sessions from their ex-partner, is prepared for mediation by the counsellor, who strategically intervenes in the family impasse and attends directly to the child’s needs. In the negotiation or conflict-resolution phase, specific disputed issues are resolved and access agreements developed. Lastly, in the implementation phase, the counsellor remains available to each family on an individual basis for emergency consultations in the event of further conflict, and to help the parents interpret, monitor and modify their agreement (Johnston and Roseby, 1997: 233-234).

In terms of effectiveness, Johnston and Roseby (1907: 230-239) discussed two studies of high- conflict families referred from the family courts (with 80 and 60 participants, respectively) who received this treatment. About four fifths reached initial agreement and two thirds were able to keep or renegotiate their own agreements regarding custody and access and stay out of court over a two- to three-year follow-up period. A briefer consultation model has also been developed. A study comparing the longer model with the briefer model found that both were equally effective at a nine-month follow-up in increasing parental cooperation and resolving disputes. They also suggested that brief, strategic intervention in high-conflict disputes might have greatest effectiveness when paired with vigorous court intervention early in the legal process. Impasse-directed mediation is most likely to benefit those who have experienced traumatic or ambivalent separations or those enmeshed in “tribal warfare” within the larger social network. It may not be sufficient for parents with severe personality disorders. Nor is it appropriate when serious allegations of domestic violence must be investigated.

Other authors have probed the difficulties of mediation in high-conflict situations. Mathis (1998) argued that parents with low differentiation (spouses not adequately differentiated from each other in order to function effectively as individuals) are poor candidates for mediation. Such couples seem to dispute for the sake of disputing. Calling these parents “couples from hell,” Mathis proposed that mediators should be more active with undifferentiated clients than with other types, should take firm control immediately, and should address the condition of poor differentiation first, before trying to settle anything under dispute. Parkinson (2000) argued that for mediating in high-conflict disputes (not involving physical violence or other forms of abuse) the mediator needs to intervene actively and with more careful structuring of sessions. She suggested various tactics the mediator can use in such mediations. The mediator should actively listen to the spouses, using not just words but body language such as a balanced and stable body position. However, she acknowledges as well that the mediator should not feel under any pressure to struggle on indefinitely. If no progress is being made, mediation should end. Vestal (1999) examined mediation and parental alienation syndrome (PAS), a controversial theory, in which children, through the disparaging of one separated spouse, become preoccupied with viewing one parent as good and the other as bad. The bad parent is hated and verbally maligned, whereas the good parent is loved and idealized. Vestal argued that mediators should be trained in how to detect PAS and how to deal with the dishonesty and deception of the parent who has, in effect, brainwashed the child. A mediation model to address suspected PAS in custody disputes must address four areas of concern: the need for mental health expertise; the assurance that the court will take swift judicial action when necessary to discourage stalling and deception by the aligned parent; the need to balance the power discrepancy felt by the rejected parent; and an ongoing process to monitor cooperation with court orders or agreed-upon steps in the mediation process. However, she also argued that mediation should be bypassed in cases of severe PAS.

Spillane-Grieco (2000) offered a case study of the use of therapy with one family experiencing high conflict, actually a father and a daughter, because the mother refused to participate. Using cognitive behaviour family therapy, communication skills and problem-solving skills were emphasized. For example, family members were taught to be specific, to phrase requests in positive terms, to respond directly to criticism instead of cross-complaining, to talk about the future rather than the past, and to listen without interruption. They were encouraged to think about what an event means to another person, to empathize. She concluded that, from this single case study, cognitive behaviour family therapy appears to be an effective treatment for high-conflict families.

The Group Mediation Model Program of Family Court Services of Alameda County Superior Court, California, is designed specifically for parents and their children who are entrenched in custody and visitation disputes. It has operated since 1989. Mediators with training in group process developed this approach based on the belief that the group dynamic is a fundamental aspect of change. The idea is to allow each group to develop its individual character and then to make use of that dynamic in working with families. It emphasizes placing responsibility on the parents to recognize and find ways to resolve their disputes and overcome their inability to communicate with each other. The goals of the program are to help separated parents understand their children’s needs and feelings; to help parents communicate with each other and make more effective joint decisions on behalf of their children; to help parents protect children from inter-parental conflict and from their own negative emotions and behaviour; to reduce excessive and destructive litigation over custody issues; to increase compliance with parenting plans and court orders that provide predictability and security for the children; and to provide peer support for children who are in the middle of their parents’ post-separation disputes.

Eight families are seen simultaneously in this group intervention. Generally, families are eligible for the program if they have failed to reach an agreement after a minimum of two attempts in mediation, if the parents are in such disagreement over child rearing that they sabotage or undermine each other’s relationship with the children, and if the children show signs of distress in reaction to the parental conflict. Some families are excluded, such as those in which there are allegations of child abuse that require investigation. Group members are required to sign a confidentiality agreement that, for example, guarantees that the information given in the group will not be used in court. The group meets weekly for a total of eight 90-minute sessions. For the first four sessions, co-parents are separated into two concurrently run groups of mixed gender. Also during the first four weeks, children between four and twelve years old meet together in a separate group. For the last four sessions, the parents’ groups are combined into one large group and the children’s group is disbanded. Bringing the whole family for group counselling sends the message that the problems they are having are everyone’s concern and that everyone needs to be part of the solution.

The first session introduces participants to the group process and focusses the parents on the needs of the children. Parents are asked to describe their children in order to show how differentiated or attuned they are to the children. The second and third sessions focus on the parents’ impasse and how it affects children. The fourth session prepares the parents for the combined group of the last half of the sessions and helps them clarify the goals they want to accomplish in the remaining sessions. The fifth session is devoted to detailed feedback about the children, with all the parents in one group. The strategy needs to be quite frank about the negative parts of each child’s adjustment and behaviour that were brought out in the children’s group. In sessions six to eight, the goals are for the co-parents to communicate with one another, solve problems and decide how they are going to do things better in future for the sake of their children. The leaders in these sessions repeatedly ask each pair of parents: “”What one thing would you like to change to make things better? What can you do to make things better?”

In 1995 Johnston studied a sample of 39 separating and divorced families at impasse over custody who participated in this group mediation program. Parents and children were assessed at the beginning of the program and again at a nine-month follow-up. Litigation rates, use of family court service and the cost-effectiveness of this group mediation sample were compared to a sample of 49 separating and divorced families at impasse who did not receive the group intervention.

Compared to the baseline, at the nine-month follow-up, both men and women who received the group intervention were substantially more cooperative, expressed less disagreement with one another, and were more likely to have resolved custody disputes. Also, domestic violence between parents diminished to a negligible amount. Litigation rates showed significant differences at follow-up between those experiencing the intervention and the comparison group. For example, new client initiated filings for both custody/visitation and financial matters in the intervention group were reduced to one third the rate of those not receiving the intervention, and court hearings on custody/visitation were reduced to about one half the rate of the comparison group. However, the limitations of this study were pointed out, such as the small size of the sample, and deficiencies in the way subjects were selected for the intervention and comparison groups (Johnston, n.d.: 97-123).

In comparing the Alameda group counselling program and the Los Angeles group educational program discussed earlier, men and women in both groups reported, on average, improvement in each measure of conflict and cooperation used in the studies (Johnston, n.d.). They were significantly more cooperative, expressed less disagreement with each other and were more likely to have resolved the custody disputes with their ex-partners. Also, recent domestic violence between parents diminished over this period, from about two fifths to one tenth of families. The data suggested that, at the nine-month follow-up, participants in the Alameda program may have made more substantial gains than those in the Los Angeles program. On average, women in the Alameda program reported less violence and greater inter-parental cooperation, and men in the Alameda program reported greater parental cooperation, than did men and women in the Los Angeles program. Participants of both programs reported similar improvement in their own (and to a lesser extent their ex-partner’s) ability to communicate with the other parent, their ability to protect their children from conflict, their understanding of their children’s needs, and their understanding of their own role in the dispute. However, Johnston advised caution about these results. Without a control group and with the random assignment of families to the intervention and non-intervention conditions in both programs, there was no way of knowing for sure if the improvements attained at follow-up were due to the passage of time. With regard to litigation rates, the Alameda group showed significant reductions in new filings (about one third) and significant reductions (about one half) in custody and visitation matters at the follow-up versus the comparison group. In contrast, families who attended the Los Angeles educational program showed no reduction in new filings or court hearings (Johnston, n.d.: 243-252).

In concluding this discussion on mediation, Johnston (n.d.: 255) has the final word. She argues that the procedural organization of services to address high-conflict divorce rests on the principle that family courts should provide the least intrusive intervention into the private lives of families to ensure they will be able to care for their children. If families fail to settle through means such as parenting education and mediation, they are referred to progressively more intrusive educational classes, therapeutic interventions and, where all else fails, to co-parenting arbitration and supervised visitation.

However, she asks: “”Do some families have to fail successively at each level of service before they get the help they really need?” She proposes that future research on high-conflict divorce could explore a range of services. This range of services is set out below:

Parenting education after separation and divorce:
Workshops, videos, literature, divorce adjustment groups for all parents and children with attention to special needs of never-married parents, ethnic minorities, and parents with infants and young children.

Mediation and consultation:
For parents in custody and access disputes, including brief issue-focussed mediation, and consultation and counselling with collaborative attorneys and therapists. Children not usually included. Content and process confidential from court.

Success is likely for parents who, with a mediator’s help:

• have the capacity to contain emotional distress and focus on children’s needs;
• despite anger, can distinguish children’s needs apart from their own;
• have some history of parental cooperation;
• can acknowledge the value of the other parent to the child;
• obtain early intervention (in which cases it is likely to be especially effective); and
• are able to design access schedules and custody arrangements according to their individual needs.

Mediation and consultation are inappropriate for cases involving serious allegations of abuse, molesting, domestic violence, severe mental illness, substance abuse, etc.

Specialized education, psychological interventions and assessments:
For parents unable to mediate stable settlements.

Education and skill-building:
Classes to explain laws about custody, domestic violence, contempt, psychological effects on children of conflict and violence, parallel and cooperative parenting; exercises to teach effective communication and problemsolving. Does not deal with specific child or family situations, hence confidentiality is irrelevant to court.

Appropriate for families who:

• lack knowledge about laws and procedures of family court;
• are overly dependent on litigation to make parenting decisions; and
• are deficient in communication and problem-solving skills.

Inappropriate when there are:

• serious allegations of child neglect and abuse, domestic violence, substance abuse or mental illness; or
• character disordered parents who tend to use educational information to further strategic advantage in litigation.

Therapeutic or impasse-directed mediation:
Counselling about psychological factors that lock parental disputes and about the child’s needs prior to mediating issues. Children included. Content confidential; only status report on progress goes to court.

Appropriate for families when:

• emotional issues keep intruding and disrupting mediation/negotiation;
• children show symptoms of distress and parents are unresponsive and preoccupied with their own pain or with the fight;
• parents are experiencing acute reactions to humiliation and loss inherent in divorce;
• there are traumatic separations; or
• there is “tribal warfare” (new partners, extended kin, and professionals involved in dispute).

Inappropriate or insufficient for:

• serious allegations and substantiated abuse and violence; or
• serious parental character pathology, substance abuse and mental illness.

Custody evaluation:
Court appoints or parties stipulate child-focussed evaluation, home-school study to investigate allegations. Children and collaterals included. Written report and recommendations to court.
Appropriate for families when there are:

• serious allegations of abuse, molesting, domestic violence, severe mental illness, substance abuse; and
• if allegations are substantiated, in which case the court must impose and monitor a protective custody and access plan.

Inappropriate:

• as a routine response to failed mediation and negotiation (consider a confidential child- focussed assessment instead); and
• when the facts are not in dispute (consider ongoing parenting and co-parenting help instead).

Co-parenting counselling and arbitration:
For parents who continue in high conflict despite mediated or court-ordered settlement. Variously called special master, wise person, custody commissioner, med-arb, this professional is appointed by stipulation of the parties or an order of the court to manage ongoing conflict, help co-ordinate parenting, make timely and flexible decisions, and case-manage with other professionals involved. Includes access to children or their therapists. Scope of arbitration authority is defined by stipulation or court order. Usually not confidential from court. Appropriate:

Co-parenting counselling and arbitration:
For parents who continue in high conflict despite mediated or court-ordered settlement. Variously called special master, wise person, custody commissioner, med-arb, this professional is appointed by stipulation of the parties or an order of the court to manage ongoing conflict, help co-ordinate parenting, make timely and flexible decisions, and case-manage with other professionals involved. Includes access to children or their therapists. Scope of arbitration authority is defined by stipulation or court order. Usually not confidential from court. Appropriate:

• when entrenched custody conflicts and chronic litigation emanate from serious psychopathology, personality disorders and parenting deficits;
  to monitor potentially abusive situations;
• to support a parent who has an intermittent mental illness;
• to make timely decisions for infants and very young children; and
• to coordinate the care of a child with special needs.

Inappropriate for:

• a family crisis when problems are acute and temporary;
• when custody and access arrangements have never been established in the first place;
• when there is “tribal warfare”, especially when professionals are disputing about the family.

Supervised visitation and monitored exchange:
To provide protected parent-child contact and safe transfer of child by order of the court or stipulation of parties.

Appropriate when there is a high risk to the child or victim parent because of:

• ongoing high conflict and domestic violence;
• parental substance abuse;
• concerns about physical abuse, neglect or molesting of the child;
• a threat of or actual child abduction;
• serious mental illness of a parent; and
• as a temporary measure while investigation is proceeding.

Inappropriate:

• as a substitute for child assessment/custody evaluation by a mental health professional;
• as a substitute for therapy for the child or parent-child relationship;
• to quiet the fears of an accusing parent when allegations are unfounded; and
• when the child is chronically distressed and refuses parental contact.

Other specialized services needed to help foster parent-child relationships:

• Reconnection/reunification supervision for non-custodial parents who have long been absent or never been involved with their children;
• parenting and co-parenting assistance in domestic violence families;
• therapeutic supervision when there has been a major violation of the child’s trust in the non-custodial parent; and
• protocols between court and professionals for the management of parent alienation cases.

The above services in the fourth level need to be closely coordinated with interventions provided by other juvenile and criminal court-related services (such as child protective services and probation services) and with community-based programs (such as mental health counselling. substance abuse monitoring and treatment, batterers treatment programs, and domestic violence victims’ advocacy, etc.) (Johnston, n.d.: 257-260).

The Child’s Representative
Many jurisdictions, for example Australia and California, have statutory provisions whereby a court may appoint a lawyer for the child or children. A recent conference report and action plan on high-conflict custody cases recommended that, as a general rule, a child should have a lawyer or representative who is independent of the parents and their lawyers. In some limited circumstances, a representative for the child would not be necessary, perhaps in cases involving very young children when a judge believes the child’s interests are being properly considered by the parties. The report/action plan recommended that jurisdictions should define and describe the roles played by different legal representatives of children, so as to distinguish, for example, between a guardian ad litem and the child’s lawyer. Jurisdictions should also adopt appointment criteria and performance standards for children’s representatives (American Bar Association, 2000:6-7).

In cases of high conflict, what community resources should be used to aid in custody disputes? Stewart (2001: 46-47) proposed a division of these resources according to his high/low conflict typology. For the external factors he placed in the high conflict category, families would be referred to the following community resources: mandated services to monitor child safety: counselling and therapy to help with issues of anger and loss; addictions services; and supervised access and exchange programs. Families who fall within the low conflict typology would be referred to mediation services, individual and group support counselling for parents and children, and parent education programs.

While there is some limited evidence that parental education classes and mediation classes may be helpful in high-conflict situations, the evidence is far from conclusive given, for example, the small samples used in the studies. Moreover, the kind of mediation prescribed by experts, such as Johnston, for high-conflict situations is not regular mediation, but a hybrid of therapy and mediation. In addition, mental health professionals who are not well trained or who allow themselves to become drawn into the conflict can become sources of conflict. To avoid this problem, the recent conference report and action plan for high-conflict custody cases proposed that mental health professionals, in adopting a proactive approach to this problem, should ensure:

• that the legal community and the court are aware of the ethical rules and standards promulgated by their mental health professional organizations relating to child custody evaluations and other custody issues;
• that the mental health community respects the role boundaries that distinguish evaluator, therapist, parent coordinator, mediator, arbitrator and other professionals involved in separation or divorce cases; and
• that mental health professionals collaborate with other service providers to consider ways to conserve the family’s available resources and to bring about the best outcome for the family and child.

It also proposed methods to improve child custody evaluations and to ensure the confidentiality of treatment given the parents or child (American Bar Association, 2000: 3-5).

While options for consideration in this area of family law are many and varied, there are four major ones. Before discussing them, a brief comment is necessary about constitutional limitations. In this area of family law, the Government of Canada only has jurisdiction in matters of divorce. The provinces have jurisdiction over the administration of justice. Therefore, cooperation between those two levels of government is required to address all issues involving high-conflict divorce. Indeed, the federal government has endorsed the promotion of coordinated multi-jurisdictional efforts to ensure the well-being of children whose parents divorce. The author is exceedingly mindful of the limited jurisdiction that the federal government has in this area, and of the need to accord proper respect to the jurisdictions of provincial and territorial governments. This paper is meant to help all governments collectively consider how best to prevent, or minimize the effects of, high-conflict divorce.

1. a unified divorce court that would ensure, as much as possible, that the same judge hears all issues related to a disputed divorce;
2. the ability to appoint a special master or referee to help resolve conflict issues;
3. the use of compulsory parenting education classes;
4. the use of compulsory mediation; and
5. the ability to appoint independent legal counsel for the child or children of the divorce.

To assist the spirit of cooperation among the federal government, the provinces and the territories, an outline of these components, to help promote discussion on these issues, is as follows:

When a proceeding for divorce is begun, all issues relating to the divorce shall be heard before the same judge, unless it is impractical to do so.

2.1 A special master [or referee] may be ordered by the court to investigate any controversy that arises between the parties relating to the divorce proceeding if the parties consent to the appointment of a special master.

2.2 If the parties do not consent, a special master [or referee] may be ordered by the court to investigate any controversy that arises between the parties relating to the divorce proceeding:

• on motion by one of the parties; or
• on motion by the judge, who has been assigned to determine the issues in the divorce proceeding.

2.3 A party may object to the appointment of any person appointed as special master if:

• the potential special master shows enmity or bias towards either party;
• the potential referee has formed or expressed an unqualified belief or opinion about the merits of the action; or
• the special master is related to, or is or has been in a business relationship with, one of the parties.

2.4 The special master shall decide the controversy and make a written report to the court within 20 days after receiving all the evidence related to the controversy.

2.5 The decision of the special master shall stand as the decision of the court, and may be reviewed as if made by the court.  

3.1 Once a divorce petition is filed with the court, if the parties have any children, the court shall order that the parties attend parenting education classes.

3.2 Parenting education classes shall include in their curriculum:

• information about child development;
• information about how parental conflict affects children; and
• exercises focussed on skills to help a parent communicate better with, and resolve conflict with, with the other parent.

3.3 If there is a history of domestic violence or if domestic violence is alleged by one of the parties, each party shall attend separate parenting education classes at different times. ¹  

4.1 If it appears on the face of the divorce petition that custody or access is contested by the parties, the court shall set aside the contested issues for mediation.

4.2 Mediation proceedings shall be held in private and be confidential.

4.3 The mediator has the duty to assess the needs and interests of the child involved in the controversy.

4.4 The mediator may interview the child if the mediator believes it is necessary.

4.5 If there is a history of domestic violence or if domestic violence is alleged, the mediator shall meet with each party separately and at different times.

4.6 The mediator may submit a recommendation to the court about the custody of, or access to, the child. ¹  

5.1 If the court determines that it would be in the best interest of the child, it may appoint counsel to represent the child in the divorce proceeding.

5.2 The child’s counsel shall ensure that the best interests of the child are represented.

5.3 Unless inappropriate in the circumstances, the child’s counsel has the duty to:

• interview the child;
• review the court files and all relevant records available to both parties; and
• make any further investigation that counsel considers necessary to ascertain the facts relevant to the divorce proceeding.

In addition to these proposals, the following recommendations could be considered:

• That a study be conducted to determine whether litigants in person are increasing in divorce courts and, if so, what problems are caused by litigants in person to the parties involved in the dispute and to the court system, and what means might be used to reduce conflict in these situations.
• That courts consider establishing minimum training requirements for professionals ordered by the court to examine issues of parenting and access arising from the dispute, such as mediators, guardians ad litem, special masters, etc.  

This option proposes to address high-conflict divorce directly through the use of limited guidelines. Again, these guidelines are proposed in the spirit of a coordinated, multi-jurisdictional approach among the federal government and the provinces and the territories, and are not intended to encroach on provincial jurisdiction in this area. It is more limited than the draft protocol set out in Option Three, below. It is more limited in that it does not create a special tracking mechanism for high-conflict divorce. However, it does attempt to define high-conflict divorce, using most of the indicators set out by Stewart (2001). Admittedly, other definitions of high-conflict divorce can be used, if the Department of Justice Canada and the other Justice ministries of the provinces and territories agree to do so. The guidelines link this definition to elements that should be set out in a parenting plan. 1

1. High-conflict divorce means a divorce proceeding that has the following indicators:

A. either of the parties has a criminal conviction for (or has committed or has alleged to have committed) a sexual offense or an act of domestic violence;

B. child welfare agencies have become involved in the dispute;

C. several or frequent changes in lawyers have occurred;

D. issues related to the divorce proceeding have gone to court several times or frequently;

E. the case has been before the courts a long time without an adequate resolution;  

2. When the court determines that a divorce is a high-conflict divorce, any parenting plan approved by the court in relation to that divorce shall:  
A. be designed in a manner that will reduce the opportunity for parents to engage in conflict;

B. maximize the time that children spend with both parents, so long as both parents know and love the children, are safe guardians of the children, and are willing to parent; and

C. take into account the developmental needs of the children.

3. Parenting plans for high-conflict divorce shall set out in detail the rights and obligations of the parents, including:    
A. a written log that travels with the children, so that information about meals, medications and activities may be transmitted with minimal contact between parents and without children carrying messages;

B. transfers that occur at public places, such as a restaurant, library or day-care (if conflict continues to be a problem at transitions, supervised transitions may be appropriate);

C. separate or alternating attendance at special events for the children;

D. unrestricted, private telephone contact between the children and the non-residential parent;

E. if communication between the parents permits, an opportunity for the non-residential parent to care for the children before arrangements are made with a third party;

F. if there is parental alienation, ongoing post-divorce therapy with a neutral health professional may be appropriate;

G. a plan for resolving post-decree problems with the shared parenting plan set forth in the decree, including the use of alternative dispute resolution processes when appropriate; and

H. when appropriate, the appointment of a parenting co-ordinator to arbitrate disagreements that arise between the parties in regard to the design or implementation of the shared parenting plan. The parenting coordinator shall have authority to make recommendations to modify the parenting plan.

This option addresses how to resolve issues arising from high-conflict divorces. There are two general possibilities here.

The first possibility is the creation of a manual addressing all aspects of high-conflict divorce. Such a manual would be modeled on the Idaho Benchbook, Protecting Children of High-Conflict Divorce (Brandt, 1998). The manual would be used by judges to educate themselves about high-conflict divorce in all its aspects, ranging from literature on the impact of high conflict on children, a protocol to be followed by judges in such cases, current law on custody and visitation in such cases, special considerations in domestic violence cases, mediation evaluation and special masters, etc. Such a manual would be lengthy, but would also be comprehensive and would possibly be the best means by which judges, lawyers and mental health professionals are educated about high-conflict divorce. Of course, this manual should be the result of cooperation among all levels of government across Canada.

The second possibility is the creation of a comprehensive high-conflict divorce scheme set out in guidelines. This approach would be less informative than a judicial “Benchbook” on high-conflict divorce. However, it would be more detailed than the one in Option 2, because it would address the issues of domestic violence and the fast-tracking of high-conflict divorce cases.

In this regard, it is suggested that a “Protocol on High-conflict divorce” could set out principles and guidelines on high-conflict situations. This protocol would be modeled, in large part, on the Idaho Protocol. The following is a suggested draft of this protocol for federal, provincial and territorial governments to consider.

A. Definition of High-Conflict Divorce
High-conflict divorce means a divorce proceeding in which (a) either of the parties has a criminal conviction for, or has committed or has alleged to have committed, a sexual offense or an act of domestic violence; (b) child welfare agencies have been involved in the dispute; (c) several or frequent changes in lawyers have occurred; (d) issues related to the divorce proceeding have gone to court several times or frequently; (e) the case has been before the courts a long time without adequate resolution; (f) there is a large amount of collected affidavit material related to the divorce proceeding; and (g) there is repeated conflict about when a parent should have access to the child.

B. Parental Conflict Prior to Court Filing: Public Information
The court’s role as a representative of society and as an experienced “witness” to the damage of parental conflict to children can strongly influence the development and credibility of a public information strategy. Judges need to take a leadership role in providing such information. The primary purpose of providing public information is to engage public interest, concern and awareness critical to moving public education systems, churches and agencies to develop and fund classes, workshops, counseling and group services working with families experiencing high-conflict divorce.

C. Parent Education and Family Court Services Assessment
All parents filing for divorce must attend a Divorce Parenting Orientation, 1 which includes information about the impact of divorce on children and which may include skill-based teaching designed to help parents communicate with each other in order to reduce levels of conflict. 2 After the Divorce Parenting Orientation, parents still unable to develop 3 an alternative plan need to be ordered into mediation or be referred by the court for an assessment.

D. Guidelines for determining custody and visitation in violent parent cases
(These are based on the guidelines of Dr. Janet R. Johnston for domestic violence cases.)

D.1. Domestic violence is the use of physical force, restraint or threats of force to compel one to do something against one’s will or to do bodily harm to self, cohabitant or family member, or the mother or father of one’s child. It includes but is not limited to: assault (pushing, slapping, choking, hitting, biting, etc.); use of or threat with a weapon; sexual assault; unlawful entry; destruction of property; keeping someone prisoner or kidnapping; theft of personal property; and inflicting physical injury or murder. There may also be psychological intimidation or control in the form of stalking, harassment, threats against children or others, violence against pets, or the destruction of property. It is understood that, most often, evidence of physical abuse is not available. However, lack of corroborative data does not diminish the indications of violence available to the mediator/evaluator from reports by the 1 victim.

D.1.A.1. Domestic violence is detrimental to children, regardless of their relationship with the perpetrator of violence. Children who have witnessed or overheard severe or repeated incidents of violence perpetrated by parents are likely to be acutely or chronically traumatized and at risk for emotional, behavioral, and social difficulties, including long-term victim or perpetrator roles. Children who do not directly witness spousal abuse are also negatively affected by the climate of violence in their homes and are likely to experience impairment of development and socialization skills. Even the very young children and infants who are not thought to be cognizant of the violence can be negatively affected. For these reasons, children need to be protected from witnessing threats of violence or actual physical abuse, and from exposure to a climate of violence in their homes.

D.1.A.2. Domestic violence is understood to be behavior that arises from multiple sources, which may follow different patterns in different families, rather than a syndrome with a single underlying cause. Parent-child relationships are likely to vary with the different patterns of violence, and children of different ages and gender are affected differently. There are also different trajectories for recovery and the reconstitution of family relationships, and for the potential for future violence. For these reasons, domestic violence families need to be considered on an individual basis when helping them develop appropriate post-divorce parenting plans.

D.1.A.3. Domestic violence can occur in all cultures and ethnic groups. However, the interpretation of what constitutes violence and what is considered normal emotional expressiveness varies greatly among different cultural and ethnic groups. It is important to interpret the meaning of a behavior within its cultural context whenever possible. It is understood that a client may behave in ways that the majority culture views as destructive or psychologically aberrant, but that at the same time may be consonant with the client’s native culture. Whenever possible, it is important to provide culturally aware divorce court services staff who can “bridge” from one culture to another in interpreting domestic violence and helping families make appropriate custody and visitation plans.

D.2.A.1. The absence of violence perpetrated by the parent, and the capacity of the parent to provide a violence-free home for the child, should be given considerable weight in determining timesharing and the child’s residence. It is important to note that domestic violence often is perpetrated not by the parents but by “significant others” (e.g., new boyfriends or girlfriends, new spouses or extended family), and the potential for violence to occur in this wider domain needs to be considered. It is also recognized that physical custody awards should not be based on any one factor, and that informed clinical judgements are necessary in weighing and taking into account the circumstances of each child and family.

D.2.A.2. Adult victims of repeated or severe incidents of violence may have diminished parenting capacity when the violent relationship is terminated, as a consequence of the victimization. Therefore, prior to long-term decision-making regarding child custody and timesharing, the parent who was the victim would need the opportunity to re-establish competence and stability as a resident parent for a period of time, usually with the support and guidance of professional and peer counsellors.

D.2.A.3. When a victim of violence, for self-protection, leaves the home without the children, it should not establish a status quo in favour of the perpetrator of violence. It is understood that there are few resources available to parents with children who leave a 1

General guideline: joint legal custody is generally not appropriate when there is ongoing high conflict and potential for violence between parents, as it usually requires considerable ability to work cooperatively in joint decision-making. Legal custody orders that keep the tension and hostilities high or that maintain the risk of further violence are contrary to the spirit and intent of a joint legal custody arrangement. No legal custody arrangement should maintain a high level of continuous parental conflict or hinder the parents’ ability to make appropriate and timely decisions regarding their children.  

D.2.C.1. When there is both current and episodic threats of, and use of, violence, sole legal custody should normally be given to the nonviolent parent. In these cases, the non-custodial parent may be denied right of access to the child’s medical and educational records, if such information would provide access to the custodial address and telephone number, which the custodial parent has the right (for safety reasons) to keep confidential.

D.2.C.2. When there is a history of domestic violence that is not current, nor both recent and episodic, there should be no presumption in favour of any particular legal custody arrangement. The options include, but are not limited to, the following:  

A. An explicit division of legal custody decision-making rights and responsibilities can be awarded to each parent. B. A court master (arbitrator) can be appointed to help parents make joint decisions under a joint legal custody order.
C. Parents may have joint legal custody provided they both have the capacity to make non-coerced, timely,
cooperative decisions for their child, according to an arrangement that does not compromise their safety. D. One parent may be awarded sole legal custody.

D.2.C.3. If it is determined that sole legal custody is appropriate for a particular family, the agreement should reflect the non- custodial parent’s legal right to directly receive information concerning the child(ren)’s health, education and welfare. The agreement should include a provision whereby the custodial parent must inform the relevant health and educational institutions that the non-custodial parent has the right of access upon request to such information (excluding, if appropriate, the custodial address and telephone number). The non-custodial parent should also have the authority to consent to medical treatment on behalf of the child in event of urgent injury or illness.

D.3.B. Specific recommendations
D.3.B.1. Supervised visitation. This involves the use of a third party to transfer the child from one parent to the other, and to remain with the child throughout the visitation period. Supervised visitation is recommended when there is indication of current use of, or an expressed threat of, violence. It is also recommended when there has been both recent violence and episodic or ongoing violence in the past. In these cases, the perpetrator should normally have supervised visitation with the child under the following conditions:

A. An explicit court order should detail the conditions of the supervised access. This should include the times for the visits, the places for exchange of the child, whether telephone contact with the child is permitted and under what conditions, who should supervise the visit or how the supervisor is to be chosen, and who should bear the cost of the supervision. Although it is recognized that the court shall determine who bears the cost of the supervision, it is strongly advised that the parent who has perpetrated violence should normally bear the cost.

B. The supervisor should be a responsible adult who can be expected to provide appropriate supervision for the visitation. In general, the specific supervisor and the role that this supervisor will play during the visits may be agreed upon by both parents or ordered by the court. The supervisor should be someone with whom the child will be comfortable. The place of visitation should be one in which the child feels comfortable and safe.

C. The removal of the requirement for supervised visitation should normally be made contingent upon cessation of the threats of, or use of, violence by the perpetrator for a
period of time determined appropriate by the court, and by the order of the court, on the successful completion of an approved course of counselling for the person causing the
violence.

D. In the event that supervised visitation under the above terms is determined to be necessary but is not feasible, then the access plan should gravitate toward protecting the child, in which case access with the perpetrator of violence should be suspended until such time that supervised visitation is available or determined to be no longer necessary.

D.3.B.2. Suspended visitation. Visitation should be suspended for a designated period of time with a perpetrator of current violence, or with a perpetrator of both recent and episodic or ongoing violence, under any one of the following conditions.

A. When there are repeated violations of the terms of the visitation order, which adversely affect the child. This includes occasions when the supervisor of visitation reports that the perpetrator of violence uses supervised time with the child to denigrate the other parent, or to obtain information about the whereabouts and activities of the other parent.

B. When the child is severely distressed in response to
visitation.

C. In the event that supervised visitation under terms ordered by the court is determined to be necessary but is not feasible, then the access plan should gravitate toward protecting the child, in which case access with the perpetrator of violence should be suspended until such time that supervised visitation is available or determined to be no longer necessary.

D. When there is clear indication that the violent parent has expressly threatened to harm or flee with the child, or if the

offending parent attempts to use the child to communicate threats of physical harm or death to the other parent. Such cases should then be evaluated and a recommendation should be made to the court regarding the conditions under which supervised visitations might be resumed, or whether all contact between the child and the offending parent should be suspended indefinitely or permanently terminated. If the evaluation determines that indefinite suspension of parent-child contact is appropriate, it should be made very clear in a court order what conditions would have to be met by the offending parent before resumption of supervised visitations would be reconsidered by the court. If the evaluation determines that reinstatement of parent-child contact is appropriate, any “in person” contact should typically begin with supervised visitation.

E. If a parent has a history of extreme violence or abusive behavior (i.e. murder, attempted murder, violent sexual assault, and severe child abuse or neglect), extreme caution must be taken with regard to the child’s contact with the violence-threatening parent. Any parent-child contact should be suspended until an appropriate evaluation is made to determine under what conditions supervised visitations may occur or whether parent-child contact should be permanently terminated.

D.3.B.3. Temporary supervision or suspension of visitation. Either supervised or suspended visitation may be appropriate for a brief period in either of the following circumstances: while fact finding takes place regarding serious allegations of domestic violence, or while the child is being assessed for serious symptoms of distress and/or reluctance to visit.
Suspended visitation, for a brief period, is appropriate following a traumatic episode of violence perpetrated by one parent, when the abused parent and child have sought shelter (e.g. in a battered women’s shelter) and need respite. This period of respite should not be less than two weeks.

D.3.B.4. Unsupervised access/visitation. Under an arrangement for access between parents and children when there has been a history of domestic violence but the violence is not current, nor both recent and episodic or ongoing (as in the above sections on supervised and suspended visitation), the following provisions should normally be appropriate.

• The access arrangements should be explicitly stated in court orders (with respect to schedules, times, dates, holidays, vacations, etc.) that can be easily interpreted and enforced by police officers if necessary, and subject to contempt actions if the orders are violated.
• Telephone contacts initiated by the parents to one another or to the child should be at scheduled times only. The child should have unrestricted access by telephone to both parents.
• A restraining order should normally be in place preventing the parent who has perpetrated violence from coming near the other parent, including during drop-off and pick-up times with the child. The use of mutual restraining orders is generally appropriate only when there is evidence of actual mutual physical or psychological abuse.
• Transfer of the child should be at a neutral safe place, preferably with a third party present.

When there is considerable concern about the parenting capacities of both parents, and when one or both parties have perpetrated violence, the following may be appropriate.

• Temporary custody and visitation awards can be made contingent upon either or both parents obtaining parent counselling, and approved counselling for cessation of the violence. If there is evidence that drug or alcohol problems are contributing to the violence, then temporary awards should be provisional upon treatment for these problems also. If treatment and/or repeated attempts to improve parenting skills fail and the children continue to be at risk. referrals should be made to appropriate Child Protective Services.
• Temporary awards made with these provisos should be subject to appropriate review to ensure compliance with the terms of the agreement and the safety and well-being of the child.
• It may be appropriate to give more weight in the custody/ access decision to providing the child with continuity in relationships with supportive “others’ (such as teachers, peers, grandparents) and stability of place (such as neighborhood and school). A parent’s need to make a geographical move for economic reasons is a exception to this

D.4.A.1. Children who show symptoms of fear, anxiety, persistent refusal to visit, and other distress in relation to visitation with a parent who is perceived to have perpetrated violence should normally be seen and assessed by Divorce Court workers, or by any counsellor, therapist, or advocate who is trained to interview children and who is prepared to talk with Divorce Court Services. The purpose of this assessment is to hear the child’s concerns and recommend appropriate schedules to the court. including safeguards in the visitation plan that help the child feel more safe and comfortable with the arrangement.

D.4.A.2. Children who express strong wishes to talk with the judge” and those who write letters and attempt to communicate with the court should normally be given the opportunity to talk to Divorce Court Services workers or to a legal or mental health counsellor who is trained to interview children and who is prepared to talk with Divorce Court Services. The purpose of interviewing children is to gain a greater understanding of the child’s wishes and needs, and to provide the child with an opportunity to be heard. It should be made clear to both parents and the child that the child is not testifying, that a decision about custody and access is not the child’s to make, and that the child does not have to choose between parents.

D.4.A.3. Children who have witnessed severe or repeated incidents of parental violence are likely to be acutely or chronically traumatized and in need of remedial psychological help. Their reluctance or refusal to visit a parent should not be seen as solely induced by an alienating parent. Whenever possible they need to be referred for psychological treatment, and each parent (whether victim or perpetrator) is likely to need separate collateral parental counselling as well.

D.4.A.4. It may be appropriate to appoint a guardian ad litem to represent the child’s interests and concems during the legal proceedings when there has been domestic violence and when the child is symptomatic or reluctant to visit.

D.3.B. Specific recommendations
D.3.B.1. Supervised visitation. This involves the use of a third party to transfer the child from one parent to the other, and to remain with the child throughout the visitation period. Supervised visitation is recommended when there is indication of current use of, or an expressed threat of, violence. It is also recommended when there has been both recent violence and episodic or ongoing violence in the past. In these cases, the perpetrator should normally have supervised visitation with the child under the following conditions:

A. An explicit court order should detail the conditions of the supervised access. This should include the times for the visits, the places for exchange of the child, whether telephone contact with the child is permitted and under what conditions, who should supervise the visit or how the supervisor is to be chosen, and who should bear the cost of the supervision. Although it is recognized that the court shall determine who bears the cost of the supervision, it is strongly advised that the parent who has perpetrated violence should normally bear the cost.

B. The supervisor should be a responsible adult who can be expected to provide appropriate supervision for the visitation. In general, the specific supervisor and the role that this supervisor will play during the visits may be agreed upon by both parents or ordered by the court. The supervisor should be someone with whom the child will be comfortable. The place of visitation should be one in which the child feels comfortable and safe.

E. Alternative dispute resolution options when parental violence is not present

E.1. Each judicial district should develop appropriate alternative dispute resolution options recognizing differences of resources and needs in each judicial district.
E.2. In all districts, a core of mediators should have specific training in high- conflict divorce mediation.
E.3. In all districts, mediation or other alternative dispute resolution methods would be utilized prior to contested proceedings involving the custody of children.

F. Adjudication

F.1. Scheduling/trial setting for high-conflict cases
F.1.A. The case needs to be given the earliest possible setting, in order to bring closure to the legal battle. However, sufficient time must be allowed in order for parties to exhaust alternative dispute resolution (ADR) possibilities before the trial. If domestic violence or other considerations make ADR inappropriate, the trial should be held at the earliest possible opportunity.
F.1.B. Generally, no custody/visitation hearings will be held before the moving party has attended the court-ordered divorce parenting workshop or “divorce orientation” or “mediation class.” A divorce parenting orientation is available weekly to parents in each district. The order to attend the divorce parenting workshop advises the parties they will be expected to submit a parenting plan after the workshop.

F.1.C. At the time of filing, there are two recommended models to protect children of high-conflict divorce.

• At the time of fling, parties are referred to the divorce parenting workshop and within 30 days following the workshop, they must file a temporary parenting plan. Parents must then file a final parenting plan within 60 days after filing the temporary one. If filing deadlines are missed, parties are ordered to case assessment or some form of ADR, and, if necessary, adjudication. Under this model, any trial setting would be 120 to 150 days after the date of the case filing.
• Upon the filing of the Answer or other pleadings indicating custody issues raised, an Order to File a Parenting Plan within 30 days is entered. If the parenting plan is not filed, the file is pulled and given to the judge who orders a Status Conference. A Status Conference may be held by telephone. If the judge determines during the conference that the children need protection and it is a high conflict case, the case is placed on the “fast track” and a trial is scheduled within 90 to 100 days.

F.2. Pre-trial order/pre-trial conference issues

F.2.A. Appointment of a guardian ad item or attorney for the children It is recommended that in a high conflict custody adjudication the court should consider whether the children should have independent representation either by a guardian ad litem or by separate counsel. The decision of which to appoint depends upon the decision-making capacity of the child.

F.2.B. Appointment of an expert witness

The parties are encouraged to agree to the appointment of an expert to perform a custody evaluation (including a psychological assessment of the parties and a home study), in lieu of hiring separate experts for each side. If the parties are unable to agree on the appointment, the court should consider making the appointment sua sponte or may order any party to be evaluated by the other party’s evaluator. The order should address the admissibility of the evaluation as the expert’s direct testimony, without the necessity for the expert’s presence at the hearing (although either party could subpoena the expert to be cross-examined regarding the evaluation).

F.2.C. Referral to settlement conference or special master

• F.2.C.1. Even if other forms of alternative dispute resolution have failed or have been deemed inappropriate due to concerns about the danger of domestic violence, the presiding judge may consider referring the case to another judge for a settlement conference focussing on the issue of custody.
• F.2.C.2. In order to shorten the trial, the court may consider appointing a special master to conduct fact-finding on some or all of the issues to be tried.

F.3. Trial
F.3.A. The judge sets the tone at the outset of the trial or hearing. The judge makes it clear to the parties and the attorneys that they are to present their case in a manner that reduces the level of conflict and hostility between the parties and treats each parent with respect and courtesy.

F.3.B. The judge needs to manage the trial to assure completion in the time allotted, in order to avoid having to finish t sh the trial at a later date. Invariably, lengthy interruptions result in new grievances and issues that the parties will want to bring before the court. It is recommended that if the judge doubts whether the parties will complete their proof in the time allotted, he or she limit the amount of time each side will have to present its case (charging cross-examination time to the side conducting the cross) to assure timely completion.

F.4. Interviews of children
Interviews of children need to be handled with great caution. Children normally love both parents and should not be placed in the position of having to choose one parent over the other.

G. Decree/parenting plan
G.1. A detailed shared-parenting plan should be included in the decree. As a general rule, the higher the level of conflict between the parents, the more specific the shared-parenting plan should be to protect the children. In cases involving domestic violence, see Section D. Guidelines for determining custody and visitation in high conflict and violent parent cases. To protect the children, the shared-parenting plan in the decree should include the following:

G.1.A. Be designed in a manner that will reduce and/or minimize the opportunity for conflict between parents.

G.1.B. Maximize the time the children spend with both parents, so long as both parents know and love the children, are safe guardians of the children, and are willing to parent.

G.1.C. Take into account the developmental needs of the children. The implications of those needs for the parenting plan differ depending on the level of conflict between the parties (see “Normal Visitations versus Conflict Visitations” in Garrity and Baris, 1994).

G.2. To protect children, parenting plans may include some or all of the following provisions:
G.2.A. Requiring a written log which travels with the children, so that information about meals, medications, activities, etc. may be transmitted with minimal contact between parents and without children carrying
messages.
G.2.B. Transfers that occur at public places, such as a restaurant, library or day-care. If conflict continues to be a problem at transitions, supervised transitions may be appropriate.
G.2.C. Separate or alternating attendance at special events for the children.
G.2.D. Unrestricted private telephone contact between the children and the non-residential parent.
G.2.E. If communication between the parents permits, an opportunity for the non-residential parent to care for the children before arrangements are made with a third party
G.2.F. If parental alienation is established, ongoing post-divorce therapy with a neutral health professional may be appropriate.
G.2.G. Include a plan for resolving post-decree problems with, and changes to, the shared-parenting plan set forth in the decree, including the use of alternative dispute resolution processes when appropriate.
G.2.H. Include, when appropriate, the appointment of a parenting co- ordinator to arbitrate disagreements that arise between the parties in regard to the design or implementation of the shared-parenting plan. The parenting coordinator should have authority to make recommendations to modify the parenting plan.

H. Post adjudication
All ADR options should be considered in post-adjudication proceedings.

This option would create a separate statute, entitled the Protection of Children in High-conflict divorce Act. It would put several of the elements of the protocol outlined immediately above into statutory language, but in addition it would set out, in a preamble, a declaration of principles to set the context for the creation of the Act. Below is a draft statute modelled on this proposal. Because of jurisdictional variables, certain issues needed to ensure the effectiveness of this Act would have to be implemented by the provinces. For ease of convenience for the reader, the measures to be taken by the provinces are placed in brackets in this draft. The intent of this approach is to give a full picture of what a coordinated, multi-jurisdictional approach would look like. It is meant for the consideration of all levels of government and, it is hoped, it can help give them a clearer understanding of what a coordinated effort by all governments could achieve in this area of law.

The Protection of Children in High-conflict divorce Act

Preamble

WHEREAS research documents that the harm done to children as a result of divorce is exacerbated by high conflict;
AND WHEREAS it is recognized that in cases of divorce involving children, neither parental conflict nor the judicial system should cause additional harm to children: DECLARATION OF PRINCIPLES:
This Act is based on the following principles:
A children of high-conflict divorce need protection from the potentially harmful effects of the adversarial approach used in the judicial system to resolve disputes between parents;
B. the judicial system, lawyers, mental health professionals and community services should collaborate proactively to prevent or reduce conflict between disputing parents in a divorce proceeding:
C. the judicial system, lawyers and mental health professionals should collaborate to assist parents in developing a plan for the ongoing caretaking of children; D. a parenting plan will serve the best interest of the child only if it minimizes
conflict, maximizes time with the parent when appropriate, and meets the child’s developmental needs; and,
E. parents and children need safety from threats, harassment and physical violence in order to provide and care for their children.

1.1. Title. This Act may be cited as the Protection of Children in High-conflict
divorce Act
1.2. Definitions

“Domestic violence” means physical abuse, or sexual abuse, or the threat of physical or sexual abuse, used by one party in the divorce proceedings against the other party or against a child of the family.
“High-conflict divorce” means a divorce proceeding in which:

A either party has a criminal conviction for (or has committed or has alleged to have committed) a sexual offence or an act of domestic violence;
B either party has committed, or is alleged to have committed, an act of domestic
violence;
C. child welfare agencies have become involved in the dispute;
D. in relation to the divorce proceeding, there have been several changes in lawyers;
E. any party in the divorce proceeding has gone to the court several times to resolve issues relating to the proceeding:
F. the divorce proceeding has been before the court for a long time without being resolved;
G. there is a large amount of collected affidavit material related to the divorce proceeding; or in which
H. there is repeated conflict over the issue of parental access to a child.

“Supervised access means face-to-face contact between a parent and a child, being access that occurs:
A. at any place approved by the court where access can be appropriately supervised; or
B. in the immediate presence of any person approved by the court.

2. Parent Education Classes

2.1. The court, on its own motion or that of a party to the divorce proceeding. may determine if the divorce proceeding is a high-conflict divorce.
2.2. If the court determines that the divorce proceeding involves high conflict, the court shall order that the parties attend parenting education classes.
2.3. Parenting education classes shall include in their curriculum:

A information about child development;
B. Information about how parental conflict affects children; and
C. exercises focussing on skills to help a parent communicate with, and resolve conflict with, the other parent.
D. If there is a history of domestic violence or if domestic violence is alleged by one of the parties, each party shall attend separate parenting education classes at separate times!

3. Mediation

3.1. If the parents are unable to agree on a parenting plan for the children after attending parent education classes, the court shall order that the parties attend mediation presided over by a mental health professional who has received training in the resolution of high-conflict divorce situations.
3.2. Mediation proceedings shall be held in private and be confidential. 3.3. The mediator has a duty to assess the needs and interests of the child involved in the controversy.
3.4. The mediator may interview the child if the mediator believes that it is песеѕѕаrу.
3.5. If there is a history of domestic violence within the family or if domestic violence is alleged by one of the parties, the mediator shall meet with each party separately and at separate times (alternative: The court shall refuse to order mediation).

4. Fast-tracking the Trial

If the parents are unable to agree to a parenting plan after mediation, the court shall:
A. order that the trial to resolve all issues arising from the divorce proceeding be held as soon as practicable; and
B. order a temporary parenting plan after hearing evidence presented by the parties, to last until the court at the trial of the divorce proceeding orders a permanent parenting plan.

5. Legal Counsel for the Child

5.1. If the court determines that it would be in the best interest of the child, the court may appoint counsel to represent the child in the divorce proceeding.
5.2. The child’s counsel shall ensure that the best interests of the child are represented.
5.3. Unless inappropriate in the circumstances, the child’s counsel has the duty
to:

A interview the child;
B. review the court files and all relevant records available to both parties; and
C. make any further investigations as the counsel considers necessary to ascertain the facts relevant to the issue in the divorce proceeding.

6. Appointment of Special Master

6.1. A special master for referee] may be ordered by the court to investigate any controversy that arises between the parties relating to the divorce proceeding, so long as the parties consent to the appointment of a special master.
6.2. If the parties do not consent, a special master (or referee] may be ordered by the court to investigate any controversy that arises between the parties relating to the divorce proceeding:
A. on motion by one of the parties; or
B. on motion by the judge who has been assigned to determine the issues in
the divorce proceeding.
6.3. A party may object to the appointment of any person appointed as special
master if:
A. the potential special master shows enmity or bias towards either party
B. the potential referee has formed or expressed an unqualified belief or opinion about the merits of the action; or
C. the special master is related to, or is or has been in a business
relationship with, one of the parties.
6.4. The special master shall decide the controversy and make a written report to the court within 20 days after receiving all the evidence relating to the controversy.

7. Contents of Parenting Plan

7.1. Any parenting plan approved by the court in relation to a high-conflict divorce shall:
A be designed in a manner that will reduce the opportunity for parents to engage in conflict;
B. maximize the time the children spend with both parents, so long as both parents know and love the children, are safe guardians of the children, and are willing to parent; and,
C. take into account the developmental needs of the children.

7.2. Parenting plans relating to high-conflict divorce shall set out in detail the rights and obligations of the parents, including:
A. requiring a written log which travels with the children, so that information
B. about meals, medications and activities may be transmitted with minimal contact between parents and without children carrying messages; transfers that occur at public places, such as a restaurant, library or day- care (if conflict continues to be a problem at transitions, supervised transitions may be appropriate);
C. separate or alternating attendance at special events for the children; D. unrestricted private telephone contact between the children and the non- residential parent:
E. if communication between the parents permits, an opportunity for the non- residential parent to care for the children before arrangements are made with a third party;
F. if parental alienation is established, ongoing post-divorce therapy with a neutral health professional may be appropriate;
G. a plan for resolving post-decree problems with, and changes to, the shared-parenting plan set forth in the decree, including the use of alternative dispute resolution processes when appropriate; and
H. when appropriate, the appointment of a parenting coordinator to arbitrate disagreements that arise between the parties in regard to construction or implementation of the shared-parenting plan. The parenting coordinator shall have authority to make recommendations to modify the parenting plan.

8. Allegations of Domestic Violence

8.1. When, in any divorce proceeding, it is alleged that a party to the proceeding has used violence against the child or a child of the family or against the other party to the proceedings, the court shall, as soon as practicable, determine, on the basis of the evidence presented to it by or on behalf of the parties to the proceedings, whether the allegation of violence is proved.
8.2. When the court is satisfied that a party to the proceeding has used violence against the child or a child of the family or against the other party to the proceeding the court shall not:

A. make any order giving the violent party custody of the child to whom the proceedings relate; or
B. make any order allowing the violent party access to that child.

8.3. The court may order that the violent party have supervised access to the child if the court is satisfied that the child will be safe with the violent party during that access time.

8.4. In considering whether a child will be safe while a violent party has supervised access to the child, the court shall consider:
A. the nature and seriousness of the violence used; B. how recently the violence occurred;
C. the frequency of the violence;
D. the likelihood of further violence occurring; and
E. the physical or emotional harm caused to the child by the violence; whether the other party to the proceedings considers
F. that the child will be safe while the violent party has access to the child, and consents to the violent party having access to the child;
G. the wishes of the child, if the child is able to express them, having regard to the age and maturity of the child;
H. any steps taken by the violent party to prevent further violence occurring: and
I. any other matter the court considers relevant.

8.5. If the court is unable to determine whether the allegation of violence is proved, but is convinced that there is a real risk to the safety of the child, the court may make any order it believes is necessary to protect the safety of the child.

9. Breach of Parenting Plan

9.1. A party who believes that the other party in the divorce proceeding is attempting to, or has failed to comply with, the terms of a parenting plan approved by the court, may, on notice to the other party, apply to the court for a finding that the other party breached the terms of the parenting plan.
9.2. If the court determines that the parent has not complied with the terms of the parenting plan, the court shall order:
A. If access has been wrongly denied by the non-complying parent, that the non-complying parent provide the aggrieved party additional time with the child equal to the time missed with the child as a result of the parent’s non-compliance;
B. that the non-complying party pay the aggrieved party all court costs, reasonable attorney’s fees and other reasonable expenses incurred in locating or returning a child; and
C. that the non-complying party pay the aggrieved party a civil penalty not less than $100.
9.3. If the non-complying parent is presently able to comply with the terms of a parenting plan but refuses to do so, the parent shall be jailed for contempt of court until he or she complies with the order, but in any event for no more than 180 days.

This paper has attempted to discuss high-conflict divorce in all its aspects. It has examined, in part, the harmful effects of high-conflict divorce on children, theories about what causes high-conflict divorce, the use of extermal markers to identify high-conflict divorce, and the legal response in other jurisdictions to high-confict divorce situations. It proposes options for consideration ranging from moderate to radioal, with the full understanding that progress in this area of law can only be achieved through cooperation among all levels of government in a manner respectful of each govemments jurisdiction. It is hoped that this paper will contribute to a thorough debate by all stakeholders about the ways in which our prosent legal system should be changed to prevent or minimize the harmful effects of high-conflict divorce.