Commentary: Two troubling trends in custody litigation and the social cost

In my role as a divorce litigation consultant, I work with both moms and dads as they navigate the often unpredictable and frequently heartbreaking road of custody litigation and post-divorce co-parenting. Since two of three divorces are low conflict, my career has been spent dealing with the small group of high-conflict divorces—some of the one third of divorcing couples that just can’t agree on what’s best for their children during and after divorce. As mediation has become the standard pre-trial procedure in Texas, the number of litigated custody cases going all way to a jury verdict is down to about 1% of all cases—a trend that’s good for every child of divorce (and their parents, too).

Despite that trend in the decline of jury trials in Texas, two other trends have emerged among litigated custody cases that concern me:
1. The apparent rise in the number of cases of alleged “parental alienation” by unhappy non-custodial fathers, and
2. The simultaneous increase in a subtle but pernicious bias against how fathers parent their children, whether they are the primary parent or have various ranges of visitation rights.

First, as I have written elsewhere, the actual numbers of “parental alienation” cases is very low—a tiny fraction of those high conflict divorces I mentioned above. And the best available research looking at more than 1000 of those cases revealed that when mom alleges abuse, 50-70% of those allegationswere proven to be true in the courtroom, and intentionally false allegations made by mothers were exceedingly rare. Interestingly, the largest source of FALSE allegations was made by non-custodial fathers.

The danger to the children (and to the family court system) is that once the allegation of “parental alienation” is made, the burden of proof (real not legal) falls on the accused parent to prove the negative “I am not an alienator!”. Just as in the Salem witch trials, where innocence was established when the “witch” drowned during repeated dunkings, ALL attempts by the alleged “alienator” to establish her innocence are interpreted as further evidence of her guilt! (She didn’t drown, she must be a witch; she denies it, she must be an “alienator”).

This toxic labeling is frequently given unwarranted credence by uninformed or poorly professionalized mental health professionals who jump on the unproven and statistically unlikely band wagon, even though the APA refused to include “parental alienation” as a diagnosis in DSM-V because of a lack of valid and reliable criteria! Based on my experience in more than 1000 contested cases, “alienation” is family dynamic/pattern, not a personality disorder, and should be treated as a symptom of the dysfunctional family system (these parents are divorced or divorcing after all), and NOT attributed to one parent.

BTW based on my review of the research, there is NO evidence supporting the forced removal of the children from the “alienating” parent and moving the children to the home or primary conservatorship of the other parent, and much data on attachment, bonding, and childhood stress to suggest that such a “solution” is harmful to children and unhelpful in resolving the underlying parental conflict.

Back to the numbers for a minute: according to the US Census Bureau, 10 years after divorce, 87% of children reside primarily with their mothers (91% of those as a result of agreed custody decrees at the time of divorce) and fewer than 1 in 25 fathers actually fight for primary custody at the time of divorce. This disturbing trend brings me to my second point...

2. The failure to fully appreciate a father’s role in a healthy family, the difference in how men form and maintain relationships, and a resulting denigration of a father’s contribution to the development of his children by divorcing moms and sometimes, by family courts.

As I have noted elsewhere, there has been a remarkable lack of research into the role of fathers in normal children’s development until the last 30 years or so. Maternal-child bonding-attachment has been investigated for nearly 100 years but there has been little attention given to father-child bonding-attachment. Recent research, especially advances in brain imaging, have opened the door to the importance of the father’s unique contribution to the health development of children—beginning at birth! When fathers are engaged in holding, feeding, changing, talking to, and swinging babies around (as only fathers do), there are positive, identifiable changes in the brain structure and development of these fortunate children, and concurrent identifiable neurotransmitter and hormonal changes in dad as well. Dads and kids develop neurochemical “attunement” over their time together, and this attunement is reflected in positive parent-child relationships later in both their lives.

Regardless of the parents’ marital status, this father-child relationship needs to be fostered and encouraged, for the good of the children (and for society, as I will explain shortly). Children need to be nurtured, certainly, but they also need to be stimulated, challenged, and encouraged to be independent and courageous, and that’s what engaged fathers (in healthy families) do...

On the other hand, too many dads are opting out of being fully engaged dads, beginning at birth. Their own family histories, extreme attitudes about traditional family roles, economic/career pressures to work long hours, narcissistic personality features--whatever the reason--about 1 in 4 dads apparently are NOT bonding to their children through early, frequent engagement with their babies and toddlers, and consequently, both they and their children are missing out on the benefits of the potential attunement to each other.

This failure of dads to be engaged with their babies is a warning sign of marital problems occurring at the time or coming later.  Disagreements about how to raise children are a major cause of divorce in young parents, and these dads who have not been involved in caring for their young children are likely to be clueless when they have a whole weekend of visitation with children they barely know or know how to care for. They are not closely bonded to their children, and their children may not be securely attached to them either.

This attunement failure can lead to challenging visits for both dad and the kids, and if not remedied by giving good information and training to dad, to children resisting visitation with a parent they don't trust. When this happens to a dad with narcissistic features, the resulting insult to the image of a "perfect" dad can lead to accusations that the mom is "poisoning" the children, "otherwise why wouldn't they want to be with a guy as wonderful as I am". It may also contribute to the alarming number of dads who completely bail after divorce (particularly after re-marriage-more about this below).

On the other hand, for dads who have been fully engaged from the children's birth in caretaking and parenting, unresolved marital conflict and parental hostility can lead to "Disneyland dad" allegations by mom. Dad may not have daily contact or caretaking responsibilities and spends his weekend visits doing fun, active, sports or recreational activities with the kids. In healthy families, it's what dads do.

In contrast to women, who make and maintain relationships by talking; men make and maintain relationships by doing things together. Children need two parents who can provide both kinds of relating in order to develop normally. Unfortunately, in the family court, even an engaged dad can find that his relationship style and contribution to his children's development is frequently not appreciated or inappropriately criticized as "not in the best interest of the children."

This failure to appreciate dad's different contribution to parenting can lead to less access and visitation for dad, and a loss of needed father contact for the children. We all need dads to stay engaged with their children, not just for them, but for all of us.

Unfortunately, an alarmingly large percentage of dads (nearly 25%, and I suspect they are NOT bonded to their children) completely disappear within a few years after the divorce from the child's mother, leaving the kids fatherless. The consequences for the children are shocking...


As you can see, fatherless children are at the root of some of our more serious and costly social problems. This is a problem that crosses racial, ethnic, and economic boundaries, and costs all of us more $700 Billion a year in services, facilities, and lost tax dollars.

It seems that are some partial solutions:
1. Continue to encourage the growth of collaborative divorce which early data suggests lessens ongoing family conflict post-divorce.
2. Challenge allegations of "parental alienation" by dads who don't have history of engaging with their children from birth;
3. Recognize and respect the complimentary but different contributions that moms and dads make to the development of healthy children, especially in divorce.
4. Fatherless kids need mentors when they don't have dads; support and participate in mentoring programs for fatherless kids.

10 Barriers to Settlement in Mediation or Litigation of Family Law cases

A compromise is the art of dividing a cake in such a way that everyone believes he has the biggest piece.
  - Ludwig Erhard

[Erhard is a cynic, and I think he's wrong. You get what you expect.   KK]

Recently, I had the privilege of talking with two warriors on the front lines of family conflict: a marriage and family pastor at Gateway Church in Frisco, and Kevin Fuller, Board Certified Family Law attorney, talented mediator, and highly regarded advocate for collaborative divorce in Dallas. Both expressed the recognition of the same problem: growing numbers of people, who reluctantly divorce, don't want to engage in high-conflict traditional litigation, nor try the new-fangled collaborative divorce, even with its promise of "no going to court". Both of these men recognized the need for mediation before lawyers get involved, and Fuller has begun to offer "parties only" mediation to some of his inquiring clients. We all agreed that there is a need for a way to resolve, not exacerbate, family disputes and find workable solutions the issues inherent in dissolving a marriage without fracturing the family. 

Our discussions inevitably turned to the frustrations of trying to walk our clients through the process of divorce, property division, financial support for spouses and children, and conservatorship and visitation plans while the wounds of divorce are still bleeding. These conversations prompted me to consider the barriers to reaching agreements in these very trying circumstances. 

Here's my "Top 10 List of Barriers to Reaching Agreement":

1, Lack of a shared vision for the future. Most people have not considered, and find it hard to consider, what their lives will look like after smoke clears and to develop a reasonable plan to make it happen. Couple with children need to have a shared vision for the future of their children and their mutual part in that future, so that they can work TOGETHER to make it happen. Without that shared vision, self protection and "me-first" drive the problem solving process into a ditch.

2. Anger and the desire to retaliate. The most prominent anchor to the past is anger and retaliation. As one recently collaboratively divorced client put it "You have to give up the hope for a better past". While anger and hurt and the desire for revenge is understandable, when it persists, at high levels, it becomes a barrier to solving problems and reaching agreements.

3. John Gottman's divorce research identified "personal attacks on the character" of the spouse as one factor predicting inevitable divorce. Once the decision to divorce as been made and the legal process started, those same personal attacks can de-rail progress toward resolution. Legal process doesn't mitigate those attacks, generally the increased stress raises the frequency and intensity of those attacks.

4. Another anchor in the past which interferes with problem solving in the present and a plan for the future is un-forgiveness. No person gets to the decision that divorce is the best option without hurting their spouse in some way, and no spouse can reasonably claim that they have no responsibility for the relationship failing. Multitudes of sages have written that holding a grudge poisons the person who hangs on to the offense, and it frequently interferes with logical decision making in divorce negotiations.

5. Fear and anxiety can seriously impair logical thinking and rational planning. Some people who are mildly anxious before divorce begins become panic stricken during the process. Fearful spouses develop new fears during this period. The catastrophic thinking that may accompany these fears and anxieties can so restrict the perceptions of people that they literally see the world through a straw, as their brain literally narrows its focus to try to protect them against information overload. When you can only see one option, and it looks like doomsday, compromise is impossible.

6. Empathy failures and contempt. Contempt is another one of Gottman's factors that predict divorce. The inability to put oneself in the other person's shoes, difficult for many in the best of times, frequently disappears during the pain of divorce. If contempt (the opposite of empathy) was present before and contributed to the breakup, the eye rolling and mocking is only exaggerated during divorce. It's hard to give in and work with someone whom you don't respect and don't value at all. New research suggest that narcissists, who are prone to contempt of their partners during divorce, have the ability to turn empathy off and on; just reminding them to turn it on is sometimes enough too get a change of attitude and behavior that can lead to resolution.

7. Lack of expressed gratitude for the other spouse's contributions to the marriage relationship. 70-80 per cent of divorces occur in low conflict couples, and the spouse report that they just "drifted apart" and the marriage "died". This decreasing intimacy also reflects another of Gottman's findings; in failing marriages the ratio of positive to negative interactions falls to a ratio of 1 to 1. (In healthy relationships, the ratio is 20 to 1). In order to rebuild a "devitalized" relationship enough to work together to end it, both parties need to be able to express genuine appreciation for the real, positive contributions of their soon to be former spouse.

8. Failure to take any personal responsibility for the current difficulties that are interfering with reaching a resolution. Once again, since productive problem solving requires a focus on the present and the future, when any these emotional barriers to agreement that I have enumerated arise (and nearly all of them do at some point), further progress is stymied unless BOTH parties can acknowledge their own (not their partner's) challenges and struggles. 

9. Hopelessness and depression can make a good resolution appear to be impossible. Feelings of despair, sadness, and even symptoms of depression do occur with regularity during the process of divorcing. For most people, either because of effective treatment or just emotional resilience, these symptoms are not debilitating. However, for a significant minority of divorcing women AND men, depression and the hopeless outlook that goes with it, can interfere with rational thinking and problem solving. Fortunately, current treatments are more than 85% effective in alleviating depression.

10. Kevin Fuller helped me with this last category of barriers to successful agreement, and I have labeled it "cognitive impairments". This category of extremely challenging behaviors includes untreated substance abuse and it's accompanying cognitive disabilities, untreated serious and persistent mental illness (bipolar disorder, schizophrenia) and the thinking difficulties that are inherent to those illnesses, and untreated personality disorders like anti-social personality disorder (the "just plain mean and disagreeable" folks) and the borderline personality sufferers who are stuck in rigid "black and white" thinking patterns. 

The good news is that NONE of these barriers to successful resolution are insurmountable, and there are strategies and tools for removing them or working around them to reach a mutually satisfactory settlement agreement. The bad news is: it takes time, skills, and patience. More about that in the next post.

And no, Mr. Erhard, you don't have to manipulate people into believing that they "got the biggest piece of the cake". In fact, real agreements are the opposite of that cynical view of settlement--a fully informed, mutually agreed upon plan for the present and the future that both parties embrace, because they made it happen themselves. As my contracts prof used to say "a true meeting of the minds".