By Bill Eddy, LCSW, Esq.
The High Conflict Institute has developed a new method for handling high conflict family law cases, titled New Ways for Families™
The purpose of this article is to address how New Ways can be used in domestic violence cases to reduce the conflict between the parents, move both parents closer to getting needed help, provide useful parenting information, and serve as a partial assessment tool for the court in making future orders.
Domestic violence is an area of growing concern in family courts, as highlighted by the 2007 Wingspread Conference and Report sponsored by Association of Family and Conciliation Courts (AFCC) and National Council of Juvenile and Family Court Judges (NCJFCJ). Differentiating among at least four different types of domestic violence is recognized as very important, yet in reality the adversarial court process often clouds these issues more than clarifies them. Various assessment tools are being considered, and New Ways may be used as an additional partial assessment tool.
Historically, family law professionals have not recognized the significance of domestic violence risks in some cases and have exaggerated concerns in others. In the process, some partners and children have been seriously injured or killed, while other children have lost a meaningful relationship with one of their parents because of unnecessarily-restrictive parenting orders. New Ways may offer some assistance in addressing this problem, by providing non-judgmental, parallel counseling before the conflict escalates and before long-term decisions are made, while still making temporary protective orders.
The New Ways for Families method includes three basic steps:
Step 1: Individual Parent Counseling for both parents with separate confidential counselors using a structured skills-building workbook for six sessions usually over six weeks.
Step 2: Parent-child Counseling for each parent with the child/ren with a joint non-confidential counselor using a structured conversation workbook for three sessions each spanning twelve weeks.
Step 3: Family (Or Court) Decision-making with the assistance of attorneys, a mediator, a collaborative team, or the court. The Parent-Child Counselor can testify, but does not write a report.
Problems in Domestic Violence Cases in Family Courts
Problems of safety: The top priority is always safety – for the victim and the children. This is often addressed by seeking and obtaining 100-yard temporary restraining orders, residence exclusion orders, and temporary no contact orders or supervised visitation between the perpetrator and the children. Yet victims often receive no counseling and tend to underestimate the risk of injury despite the restraining orders (no paper ever stopped a bullet), including initiating contact with the perpetrator. Victims often change their minds and they do not return to court to obtain a permanent restraining order in many (perhaps a majority) of cases.
Likewise, the perpetrator often gets no counseling at this early point in the legal process and may attempt to stalk the victim or pressure the victim to reconcile. The time of separation is the highest risk for violence, yet there is no structure for focusing the intense emotions each party is feeling. Temporary restrictive parenting orders often get continued as the legal process inches forward, especially when custody evaluations are ordered. Children may go weeks before seeing one parent and, in some cases, may reside solely with a parent who has a mental health problem and/or has made exaggerated or false claims.
Problems differentiating types of domestic violence: Following the Wingspread Conference, four very different types of domestic violence have been analyzed and different legal responses have been determined appropriate for each:
• Coercive Controlling Violence “battering,” risk of serious injuries, pattern of control and fear;
• Situational Couple Violence mutual violence, few injuries, no pattern of control and fear;
• Separation-Instigated Violence 1-2 incidents at separation, no history of violence; and
• Violent Resistance by a victim to stop the violence, but higher risk of getting injured.
Yet distinguishing among these four types is not easy, as they often look the same on the surface. A slap on the face could have occurred in any of the above types. It could be the warning sign of intense intimidation that reinforces past years of fear and a serious threat for future violence for a victim of Coercive Controlling Violence. If you underestimate this risk, a victim could get seriously hurt or become isolated and severely depressed.
Or it may have been a single occurrence, or both parties may have equally engaged in aggressive behavior. If you overestimate this problem, then orders severely restricting parent contact with children may start a downward spiral of one parent giving up or a child becoming alienated against that restricted parent.
Problems with the adversarial process of assessment: Types and severity of domestic violence are difficult to assess even in the absence of litigation. But in the adversarial process, emotions often run so high that serious abuse is excused or ignored, or that isolated incidents are exaggerated. To be safe, courts often make orders based on the worst case scenario. This can reinforce false or exaggerated claims. On the other hand, after seeing several emotionally-exaggerated cases, some legal professionals have developed a presumption that domestic violence reports are strategic tactics in separation or divorce litigation and therefore all lack merit. Decisions are made at highly emotional hearings, where perpetrators can be very controlled and look good, while victims risk being seen as overly dramatic and lacking credibility. Often attorneys present opposing arguments with great intensity, when they actually have little meaningful information.
In the adversarial process, parents become rigid in their positions and become closed to any change in their own future behavior. Perpetrators feel driven to put all of their energy into defending or denying their prior abusive behavior. The price of being found guilty of domestic violence in family law cases is very high: loss of meaningful contact with children, increased financial obligations (in California spousal support can be affected by a history of domestic violence), and possible loss of liberty (going to jail).
Victims and their advocates are appropriately strong in putting forward the position that they have not “caused” the abuse they have experienced. They need to be strong, because professionals have traditionally blamed them as part of the problem. To suggest that a victim go into counseling could be seen as punishing the victim, and may be seen by the court or the other side as admitting to some responsibility for being abused. However, this is tragic, because victims can benefit so much from counseling to prevent being a victim in the future. Victims are often in extreme distress and their own denial, and they often return to their greatest source of past reassurance – ironically, the perpetrator. This is a highly-reinforcing cycle of intimacy and anger, especially as the victim feels a loss of self-esteem and fear of criticism from professionals for making bad decisions regardless of what she (or he) does. Many experienced domestic violence professionals understand that victim education is an important part of ending the cycle.
How New Ways Can Address These Problems
New Ways for Families is partially designed to address these problems, as follows:
Ordering New Ways: When the court first orders New Ways, temporary orders can be made (TROs, restricted parenting, etc.), at the same time as both parents are ordered into the counseling of New Ways.
The judge can keep the conflict from escalating by stating that he or she makes no assumptions about which parent is accurate in describing their dispute and about how serious the abuse is, or if there is abuse at all. All of this will be determined by the court in the last step of New Ways, after the counseling steps. This helps keep both parents from focusing on defending a position, and instead on following the court’s orders for the short-term, structured counseling.
Step 1: Individual Parent Counseling
As each party will meet with their own confidential counselor for six sessions (usually over six weeks), this is a safe setting for victims to address the reality of their situation without having to be blamed for the abuse. They can gain strength from their individual counselor, as well as education and strategies for self-protection. Over six weeks, victims may develop the confidence to explain the abuse more clearly to the court, and also may gain more confidence to separate (and stay separated) from their abuser. All of this is without any contact necessary with the perpetrator. In cases of distorted claims of abuse, the counselor can educate the client about the dynamics of abuse, the risks of misleading allegations, and available treatments for the client’s possible mental health problems. Long-term decisions are delayed while this counseling is occurring, so that they do not have to meet together in parenting mediation or at court. Yet it is also time-limited, so that the client knows the counseling is not open-ended and that work needs to be done with the time available. However, clients can extend the counseling by request, so that if a good relationship is established with the counselor there can be ongoing support, even if it is in less frequent sessions.
For perpetrators, or alleged perpetrators, the individual counseling is an opportunity for reality-testing and focusing on his (or her) own behavior. The counselor can educate this party on the options and potential consequences of past and future violent behavior. Yet at the same time, the counselor can give the client some hope for changing future behavior, by beginning to learn the three basic skills of New Ways (flexible thinking, managed emotions, and moderate behaviors), and applying them to possible parenting situations. This is not the end in most cases, but the beginning of accepting other treatments for domestic violence, including batterer’s treatment (in cases of Coercive Controlling Violence) or anger management (in cases of Situational Couple Violence or Separation-Instigated Violence). Ideally, such clients will be more willing to stipulate to ongoing restraining orders and a batterers treatment program or other future treatment, after discussing it in the supportive setting of confidential counseling, rather than the confrontational public setting of courtroom litigation.
Step 2: Parent-child Counseling
The second step of New Ways for Families is three highly-structured sessions for each parent alone with the children, alternating weeks with the other parent, using the same Parent-Child Counselor. No contact between the parents is necessary, although in some cases they may agree to meet together in the final session to discuss new family arrangements, schedules, communication methods, and decision-making. Such a joint final meeting could productively occur in cases of Situational Couple Violence or Separation-Instigated Violence, but would not be advised for cases of Coercive Controlling Violence.
In many domestic violence cases, the parents are going to have a Parallel Parenting arrangement, such that they do not have direct contact at exchanges (which would be done at school by each parent separately, etc.), they have highly limited communication (such as one email maximum on child-only issues a day), and they have few (if any) decisions to make jointly. In such an arrangement, each parent can have significant time with the children, based on his or her own parenting skills. The Parent-Child Counseling can realistically prepare the parents and children for this new way of parenting.
In the Parent-Child Counseling, the counselor can observe each parent’s ability to communicate supportively with their children and observe each parent’s openness to changing their communication patterns. The counselor can also observe the child’s level of comfort with each parent, and whether a child appears to have been coached or intimidated by either parent. By seeing each parent with the children in alternating weeks, the counselor can observe the contrasts in each parents’ overall capability.
Ideally, after Step 1 of New Ways, the parents in domestic violence families will be more able to make their own realistic decisions out of court by agreement, with the help of professionals, such as negotiating attorneys, a court mediator, etc. This would include stipulating to ongoing restraining orders, possible future counseling orders, parenting classes, and Parallel Parenting orders – including any possible restrictions for one parent (supervised, limited time, etc.). If possible, this could be done between the second and third sessions of Parent-Child Counseling, so that each parent could explain to the children the “new ways” of their family in the third session. This provides stability, possible respect for each other, acceptance of new arrangements, and a possible end to the litigation. Depending on state requirements and court preferences, the parents would return to court to have their agreements approved or they could simply be filed with the court.
Step 3: Family (Or Court) Decision-making
As described at the end of Step 2, it is possible that the parents will have reached some or all agreements regarding parenting by the end of the Individual and the Parent-Child Counseling. However, in many domestic violence cases, this will be unlikely. Therefore, they will go to court to argue their concerns and the court will make their decisions for them. This will occur somewhat differently in New Ways cases.
At the beginning of a full hearing on parenting issues (and possibly restraining orders and batterers’ treatment orders, etc.), the judge will ask the parents what they have learned in their counseling sessions. This puts the emphasis learning skills for future behavior, rather than on defending past behavior.
Then, the judge will quiz each parent about a future parenting scenario similar to one described in the other parent’s declaration about parenting concerns (see explanation of Behavioral Declarations in the New Ways description available at http://highconflictinstitute.com/new-ways-for-families/ new-ways-for-families-parent-information). This puts the burden on each parent to convince the court that he or she would respond in an appropriate manner with the child/ren in the future, rather than focusing exclusively on past behavior.
Then, the judge could give the parties a tentative decision and encourage them to negotiate around it in the hallway with the assistance of their attorneys (if any), another professional or neutral family members.
Then, and only then, if they were unable to reach agreement on all issues (including parenting schedule, communication, future decision-making method, restraining orders, future batterers treatment or other treatment, parenting classes, etc.), they would proceed with an adversarial hearing or trial, with testimony and other evidence about past behavior. Also, at such a hearing, the court could call the Parent-Child Counselor to testify about what he or she observed between each parent and the children. The emphasis would be on specific questions that the court had about each parent’s parenting skills, rather than on defending a Report, as the Parent-Child Counselor would not prepare a written report. This avoids shifting the focus to the “attack-defend” cycle that commonly occurs in high conflict families around written reports.
Then, while the court will make findings about past behavior and orders which may restrict one parent, the court can emphasize areas of progress and the value of future treatment for one or both parents. The overall tone and focus of this Step 3 is future behavior change, rather than future re-litigation of the court’s decisions.
Conclusion
New Ways for Families is a very new approach to high conflict litigation, which appears likely to be helpful in handling domestic violence cases as well as other cases. However, this approach has not yet been tested on a significant sample and should be tried with caution by experienced professionals familiar with domestic violence cases and legal options.
Ideally, by putting structured counseling before decision-making, New Ways gives these families a chance to change, while also observing their ability to change. When in doubt, the court can order custody evaluations or psychological evaluations after the initial New Ways steps have helped contain the conflict and taught some basic skills.For some families, with Situational Couple Violence or SeparationInstigated Violence, this process may get them back on track for mostly positive parenting where there is a low risk for future violence. For other families, with Coercive Controlling Violence (and Violent Resistance in some cases), this approach may reduce the risks of direct parenting conflict and assist both parents in complying with restraining orders, treatment orders, and parenting restrictions.
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