Thursday, April 11, 2013

Assessing Parents, Assessing Each Other and Evolving Perceptions in a High Conflict Custody Battle

The one who put the twinkle in your eye, that former lover that you want to die.

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.

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.

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©2008, 2013 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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