The one who put the twinkle in your eye, that former lover that you want to die. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Make a suggestion for me to write about.
Often you may find me writing about the nuances of language and the importance of effective communication. Communication, as I have expressed, involves far more than the words selected. Through our increased use of electronic transmittal of printed words the majority of communication is being lost.
This concept has long been expressed by our reviewing courts who state that trial court judges are in a better position to weigh witness testimony because the reviewing court can only see a cold transcript.[fn1] The reason being that it is not just the words used but how they are conveyed; the tone, inflection, volume, and speed of delivery in addition to the range of body movements. In natural settings these factors would also include personal space, physical interaction and gesticulation all of which play a more important role.
It is this cacophony of non verbal data that our brains miraculously use to make an instant assessment of the speaker. An assessment that is hardwired into our brains.[fn2] My skills at accurate first impressions while initially robust where honed during my time as an inmate in a high security prison where accurate threat assessment is a necessary survival skill. This need was dramatized during a riot in which the fight-or-flight stress response was fully activated. It was during the moments while inmates controlled a 1200 man campus before staff was able to initiate a lock down that some first impressions were made and others recalled.
These first impressions become the script or lens through which we process future communication from the speaker. Repetition reinforces this hardwired perception while deliberate action is needed to rewire the brain. Action may be performed by the speaker, the receiver or a combination of both. In parenting following separation the perception of the other parent is well grounded in the neural network and opportunity for change is restricted by their muted interaction.
While most divorces are resolved amicably there is a small segment of parents who engage in bitter hostilities towards each other through the court system. One longitudinal study [fn3] revealed that 80% of women and slightly fewer men were angry at their former spouse but the intensity of the anger and hostility by women was greater. The most hostile of these parents fall into the realm of what is known as high conflict parents, about one-fifth of women and slightly fewer men.
The men in this group may be physically abusive and while trying to convince the court that the mother is emotionally unfit to have custody these fathers had not had a nurturing relationship with their children prior to the divorce. The threatened custody battle was a weapon of control. The underlying motivation often being reconciliation.
Alternatively, the mothers in this group engaged in bitter tirades against the father in the presence of the children. Their rage against the fathers in view of the children was intended to convince the children that their fathers did not care for them. While they vigorously denied it, the motive of these mothers was to fracture the relationship between the fathers and the children.[fn3]
These hostile parents who take their battles to the adversarial process of the courts have their shattered self-esteem resurrected by the status and perceived legitimacy that a court offers. Opportunities for amicable settlement are hindered as differences and perceptions are stratified and civilized communication becomes neither valued nor possible. Forms of exchange that reduce the course of hostile communication becomes the norm.
That is, both the courts and parents tend to favour the logical approach of having communication be made through written means so as to reduce conflict and provide a record of the communication. Thoughts expressed can be more deliberate rather than a snap reaction to a statement made in the heat of an argument.
There is certainly validity to this approach and it has no doubt resulted in securing the safety of the parents when Domestic Violence may be a factor. There is an oft unconsidered loss that occurs through this method though – the opportunity to reduce conflict. This was aptly demonstrated in a case where I recently presented testimony about my assessment of the communication between the parents. Their communication has been exclusively through emails. The mother stated that she doesn't anticipate that they will ever be able to communicate through any other means. She also said she tries to read between the lines of the messages for ulterior motives. Her testimony was that father's conciliatory gestures are nothing more than posturing for the court. Her perception of him is clearly hardwired in her brain. Peeling away those layers that have built upon themselves and observing current behaviours in isolation can open up opportunities for amicable interactions.
One of his conciliatory offerings has been giving her opportunities for additional parenting time which he incorrectly attributed to me. I only supplied the impetus for him to assess the current parenting time order from his point of view, then hers and finally from that of the children. A few days later after doing a spreadsheet analysis he calls me and says “she really got screwed”. He has them all weekends and she has them most weekdays since they attend school in the town where she resides. I then prodded him to assess the parenting time from the perspective of the children. It was at that time when he observed that the children wouldn't be able to do typical weekend activities with neighborhood friends and classmates – birthday parties, sleepovers and such. Through this child centered approach he conceived offering to her one weekend a month of her choice. To her it was posturing – motivated only to appear good to the court – because she is still using the adversarial approach and seeing her sole custody petition as a tool for resolving a parenting conflict. She doesn't want to communicate with him and by having sole custody she perceives that she won't need to do such.
In my testimony I praised both parents for their improved communication and mitigating conflict by dropping what I call the “digs” – those subtle insults – from their messages to each other. While I was only able to assess her parenting through a forensic examination of emails, I have coached him for over a year and was able to observe he and the children on multiple occasions. My assessment was that I didn't believe either parents was harming the children. They both are trying to provide what each feels are best practices for the children. Her reluctance to embrace co-parenting practices and accept the genuineness of his behaviour thwart what could easily be a manageable parenting arrangement.
I may have surprised all the parties by praising the actions of both mother and father but, while I was hired by the father, I am not a hired gun. My testimony about my opinion of the parents will always be based upon actual observances or perceptions from reviewing evidence, not just what one parent wants to hear.
In the immediate case these parents could greatly benefit from face-to-face parenting coordination which I offered to facilitate. In the alternative I believe that they would benefit from communication via Skype or other teleconferencing. This method provides the same protections of establishing a record, physical separation, and, as I ultimately believe will happen, reduced conflict. I don't advocate that courts immediately order parties to communicate through this method but after initial hostilities have waned then I suggest such facilitation of communication. Reengaging the broader range of communication will not only allow judicial officers to rely upon their own review of recordings rather than my analysis of emails but should be able to engage the parents in establishing a new lens by which to see each other.
If you are engaged in a high conflict parenting case and wish to improve communication then please visit my website and contact my scheduler to make an appointment to meet with me.
Footnotes
1] Appellate courts “are in a poor position to look at a cold transcript of the record, and conclude that the trial judge, who saw the witnesses, observed their demeanor, and scrutinized their testimony as it came from the witness stand, did not properly understand the significance of the evidence.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind. 2002) (quoting Brickley v. Brickley, 247 Ind. 201, 204, 210 N.E.2d 850, 852 (1965)).
2] Randall J Harvey, PhD, Thirty-five Seconds to Survive a Gator?
3] Surviving the Breakup, 1979. Judith S Wallerstein, Joan B Kelly.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions. 
Thursday, April 11, 2013
Assessing Parents, Assessing Each Other and Evolving Perceptions in a High Conflict Custody Battle
Tuesday, March 12, 2013
Making a logical argument in a child custody proceeding
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Make a suggestion for me to write about.
Tomorrow I plan to attend another seminar on effective communication, the focus of which reminds me of one of my oft cited sayings: say what you mean and mean what you say. Today though I finally complete and present, what has been three months in the making, this posting about making a logical argument which begins with another of my frequently expressed sayings.
Oh the deceptions that we weave to rationalize when we deceive.
Whether it be to self or others the use of logic is a compelling foundation to effectuate persuasion. My son, Therin, just finished the debate season this past month. The anecdotes that I hear from him reinforce the principles of argument that I espouse in my coaching with him. In the debate forum teams are assigned to affirm or negate a proposition and then must convince the judges that the assigned position is correct.
These are hot button issues in which most people will take a firm stance. One hour Therin has to be convincing that the affirmative stance is correct. In the next he may have to tear down the argument he had just made and convince the judges of the opposite – that the negative stance is correct. It could be enough to give you heartburn.
One of the major points of litigation is to make a logical argument. Law students take numerous classes that touch upon the use of logic including those such as debate which are specifically logical argument based. Even so there are some attorneys who just don't seem to get it. Likewise, there is a large portion of the general population that doesn't think logically either. It is no surprise because there are some personally types that show a preference towards feelings. Likewise there are personality types, like mine, that favour -- or are predisposed -- to using logic. Sometimes this comes at the expense of emotion. Therefore, a balanced approach must be taken.
Knowing this is important because it has an effect on communication, especially persuasive communication. No place do we seek to persuade more so than in a child custody proceeding. A court of law is a forum bound by rules, laws and persuasive argument for a supposedly objective arbitrator – the judge. Judges are humans though which gives rise to child custody paradox: How does one demonstrate through logical argument that he or she possesses the necessary emotion – nurturing skills and empathy needed to raise a child. Thus the argument one propounds must be logically supported while at the same time demonstrating the 'human element' or emotional support that children need.
If you plan to make a logical argument or your adversary tries to use them against you then you must be able to recognize and tear apart false logic strings before they harm your case. This can be deconstructing your own argument or that of your adversary. In effect you must be a debate student ready to build your case in the affirmative and then moments later convincingly tear it to smithereens.
On one of those rare occasions while I was watching television I was quickly reminded of why I don't. I already wrote about the Liberty Mutual Insurance Company commercial. It was a real hit parade because next in the line-up was Nexium.
Nexium is a drug for the treatment of heartburn. This commercial tried to use a logical argument to elicit the conclusion that you should see a doctor about having this drug possibly prescribed to you.
The commercial attempts to portray the folly of self-diagnosis for medical ailments by showing people in various forms of discomfort arising from digestive maladies. The narrator asserts that only a doctor can make an accurate diagnosis of whether the ailment is heartburn or an ulcer. The intestinal maligned man is shown throwing baseballs all over the home plate area, stands, etc. In short, performing poorly at pitching.
The comparison between trying to self-diagnose your own ailments to trying to be the pitcher in a professional baseball game is established. It is clear that trying to be your own doctor is going to place you in the position of being a buffoon as much as stepping onto a baseball field and trying to pitch in a major league game.
So are you convinced or do you recognize the logical fallacy?
No one wants the humiliation of miserably failing to perform nor the danger that may be associated with a medical misdiagnosis. This commercial illustrates that but the formula used in the comparison is not analogous. Determining whether discomfort is based upon an ulcer or heartburn is a diagnosis – analysis. Thus, in making a baseball analogy the corresponding step would not be throwing bad pitches but would be analyzing form -- diagnosing how the pitch is poorly done. Recall that the commercial is making the point of the necessity of an accurate diagnosis, not a medical procedure – performance. You may know nothing about pitching and thus would not be a good coach just as you may know nothing about the distinction of discomfort symptoms between heartburn and an ulcer.
Conversely, if the comparison is to be an untrained ordinary person taking on the task of being a professional baseball player then the accurate medical comparison would be an untrained ordinary person taking on the task of performing a medical procedure to repair the ulcerated tissue, not a diagnosis.
This is the fallacy of inconsistent variables. While the subject matter may be the same the comparison is not valid unless there is structural congruity.
Nexium is a treatment for heartburn. The makers of Nexium tell you to let the doctor do his job, you do yours. They further state that “only a doctor can determine if your persistent heartburn is something more serious”. Litigating requires making cogent argument. The makers of Nexium should stick to their job – making drugs – and let logical people make the logical analogies. But they don't and they are convincing at establishing the validity of their foray into the field of logic although inept at doing so but that is likely not seen. They underscore their argument with an emotional connection that obscures their logical fallacy.
Just as Therin does at debate competitions, to be most effective at presenting your case you must make a logical argument that can be cemented in the mind of the judge. Don't short-change your children or yourself by making arguments in court that are seen as illogical . Marshal the necessary evidence, logically apply it to the dynamics of your case and when making an analogy for illustrative purposes be sure it is congruent if you can.
Your judge was an attorney and trained as such. Your judge is a person and most likely a parent. Presenting cogent argument without being devoid of balanced emotion is essential to effectively demonstrating your case and your child's need to have you as a parent consistently providing care and support.
All is not lost if you can't do that though. Nexium does it and they, by far, are not the only ones. If you can't make an argument that is consistent with the facts then create a false analogy and give it emotional glue. Make your doubters feel like buffoons if they challenge you.
In closing, whilst on the subject of deception, I assure you that I will soon get back to the subject on Child Advocates, Inc., once opportunity avails itself to me again.
Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
Connect with me for the latest Indiana child custody related policy considerations, findings, court rulings and discussions.
