A Review: “ High Conflict Divorce or Stalking by Way of Family Court? (TJ Sutherland)

A Review: “ High Conflict Divorce or Stalking by Way of Family Court? The Empowerment of a Wealthy Abuser in Family Court Litigation: Linda v. Lyle – A Case Study.” By T.J. Sutherland. Published 2004.

Link: High Conflict Divorce or Stalking By Way of Family Court?

Summary: Too often, domestic violence is not recognized by the professionals working in family court, and by the court system itself. Instead, the term “high conflict” is broadly used to describe two parents mutually engaged in a contentious divorce, bickering over custody of the children. And so, the term “high conflict” divorce is misapplied to situations where domestic violence and stalking is occurring. When that happens the family court ignores the presence and reality of domestic violence, endangering victims and their children.

This article by T.J. Sutherland compares and contrasts high conflict divorce with domestic violence and stalking, offering valuable insight into abusive behavior and how it manifests in family court. This article focuses on the abuser as being “wealthy” because it takes sizable assets to engage in litigation but I would like to add that wealth is not always a prerequisite – as there are various other ways abusers access, and gain access to legal help or support.

The family court case of Linda v. Lyle is also profiled in this case, to provide an example of how abusive behavior manifest in the family court setting, and demonstrate how it impacts the victim. In this case, a protective mother Linda, loses custody to her violent abuser, Lyle. Many failings of the family court system cited in this case are still being reported by parents engaged in family court litigation today.

This article also includes insight into the motivations of an abuser or stalker, and why they would engage in a prolonged custody dispute with a victim. Part of the explanation includes, “…when actually abandoned, the “urge to destroy” the mate is overwhelming. When abandoned, they use physical assault, stalking, economic abuse, verbal and psychological abuse, physical coercion and recurrent litigation.” Descriptions of the behavior of an abuser or stalker are also included. I found the explanations to be profoundly accurate, and easy to understand. And would highly recommend the section “Batterers and Stalkers” as a must read to understanding abuse and the dynamics of family court (and so-called “high conflict” situations). Other examples of abuse in the family court setting are demonstrated in the case study of Linda v. Lyle.

Additional Thoughts:

The Protective Parent:

What this article does not say, and is an important point, is that any parent who will continue litigation for years and years in order to fight to maintain a relationship with their children, and to keep the children safe from abuse or harm, is a heroic parent. Enduring prolonged litigation despite an unjust family court ruling against you, stripping you of custody and/or your parental rights, and imposing any number of sanctions against you, yet still keeping the hope that one day there will be justice, and one day your children will be returned to you, says a lot about that parent’s love for their children, and their integrity.

All protective parents involved in family court litigation have false allegations raised against them, and endure verbal and emotional attacks in the guise of litigation that lead to the forcible, and unjust, removal of children from their lives. I think it is necessary, to not only profile the abuser but also the protective parent to gain a better understanding of not just the court system’s failings but also why these parents continue to fight when they have survived so much trauma, and abuse, when the odds are stacked against them. A profile would help gain a better understanding of the dynamics of family violence (and Domestic Violence by Proxy), and would help mitigate the stigma of a “high conflict” divorce as being what it really is – a parent fighting to save their family.

What is “High Conflict”, Really?

Family court professionals who mistake domestic violence or stalking as just being “high conflict” see the problems as mutual, two people equally engaged in a dispute. Domestic violence is never mutual; and no equality exists between the partners. Abusers use force, coercion, threats, and/or cause physical or psychological harm in order to gain power and control over another person. Stalking is also included in this article, which is fitting because many abuse victims feel their abusers stalk them through the court system. For the purposes of this article, “high conflict” is defined as any court litigation that extends beyond 2 years, with no resolution.

An interesting point to this article is the use, and definition of the word “high conflict divorce.” Sutherland says that, “The descriptions of stalkers, batterers and litigants embroiled in high-conflict divorce sound very similar.” Due to the systemic failures in family court (many are described in this article) in combination with a lack of education, and training, around domestic violence issues – I have to wonder if the term “high conflict” really exists at all. There could be any number of explanations for what has happened in so-called “high conflict” situations, which may or may not include some conflict that is initiated or intensified by faulty actions of the court. The lack of accountability in the court system, and lack of a meaningful complaint procedure against judges and other court officers also makes it hard to determine what could be happening in these prolonged family court cases. I would say the term “high conflict divorce” is ambiguous at best, and inaccurate or covering up domestic violence at worst.

I do agree with Sutherland that the term “high conflict” assumes an equal balance of power, when in truth, there is none. This is especially true if you consider “high conflict” as also being a struggle between parent and the family court system, and it’s powerful players, itself.

Common Family Court Complaints Reported in Linda v. Lyle, that are also commonly reported by Protective Parents today:

• 1) Guardian ad Litem choosing the professionals to work with the family (therapist, psychologist, professionals administering tests, reunification therapist, supervised monitors/exchange, supervised visitation facility, etc). Parent has little or no say in professionals selected to work with them or their children. Objections are overruled by GAL.
• 2) The professional the parent has selected to work with is discredited by the GAL or other family court professional, or the parent is not allowed to continue working with that professional. A parent who refuses to give in to the demands of the GAL often faces loss of custody, loss of visitation, financial sanctions or other punishment.
• 3) Cronyism, bias and/or close relationships between the family court players, and the professionals they work with in their professional circle. When parents discover there may be a conflict of interest, or that the professionals may be biased because of a shared relationship, their requests to work with someone else are ignored, denied or result in retaliation.
• 4) Inappropriate or abusive use of psychological evaluations or other kinds of testing/evaluation. High costs of multiple testing may cause financial hardship for a parent. Multiple testing is usually applied to one parent only – the targeted parent usually has a complaint of abuse against the other parent, or allegations of harm against a child.
• 5) Inappropriate, abusive or unlawful use of ex parte or emergency hearings.
• 6) Improper billing by Guardian ad Litem or other family court professional, excessive fees charged
• 7) Lack of complaint process against GAL and other professionals, or they receive professional immunity. This shields the professional from being accountable for their actions, or being investigated for improper conduct.
• 8) Retaliation against parent who files a complaint against a Guardian ad Litem or other professional. Retaliation usually involves loss of custody, loss of visitation or ordering supervised visits. Other forms of retaliation involve labeling a parent as “mentally ill” for raising a complaint, which is used to justify efforts to remove the child from the parent’s care or to limit visitation.
• 9) Family court minimizing, ignoring or refusing to accept allegations of domestic violence and/or child abuse. Even with clear evidence, and witness statements, domestic violence or child abuse may not be believed, or accepted. In many cases efforts to suppress reports of abuse are purposeful, and part of an agenda on part of the judge and/or other family court professionals.
• 10) Family court professional or GAL not understanding the impact that abuse, and prolonged litigation has on a child. The family court professional may also be minimizing, denying or ignoring how the child is affected or, alternately, blaming one parent as the cause of the child’s psychological or emotional symptoms (which are related to abuse, trauma, prolonged court litigation and often, estrangement from one parent).
• 11) The child is used as a pawn by the abuser (Domestic Violence by Proxy, Parental Alienation) to hurt or retaliate against the other parent (the victim). The child is also used as a pawn by the GAL and family court professionals in their own agenda. Sutherlan notes, “Moreover, there is an external appearance that the child may have been used as a commodity in light of the fact that substantial fees were generated in the course of incrementally eliminating Linda from the child’s life.”
• 12) “..in any litigation, money is power” (Sutherland) Parent is bankrupted or financially devastated by prolonged family court litigation. This may be further compounded by unjust court orders requiring one parent (the targeted parent) to pay hefty fees or fines. Other factors that cause financial hardship include: excessive child support payments, loss of home or personal property, inability to work due to constant court involvement (or emotional toll caused by court involvement), and huge costs paid to GALs or other professionals involved in the case (custody evaluator, parenting consultant, GAL, mental health professionals, visitation monitors, etc). Parents may also be fined for various reasons, or forced to pay attorney’s fees to the identified abuser during the court proceedings. The court shows little or no understanding for the financial costs incurred, and often is unwilling to reduce fees. Parents who do not pay are often further punished, and sometimes thrown in jail.

According to Sutherland: “The divorce process shares fundamental similarities to the traditional indemnity insurance that the managed care programs replaced. Those features include 1) all decisions about family court intervention are made by a group of professionals who enjoy autonomy and wide discretion; 2) the revenue to those professionals is directly proportional to the interventions they deem appropriate; 3) access is bimodal in that the wealthy enjoy free access and programs exist for the indigent, like Legal Aid However, working poor and the middle class have limited access or no access at all.” 

It should be noted that programs like Legal Aid are being eliminated due to lack of funding, or resources. Domestic violence organizations are also limited on the legal help they can offer. Currently, there is very limited or no help available for parents engaged in custody disputes that cannot afford legal representation (parents also incur various other costs, including hefty fees imposed by visitation facilities, parenting consultants, expeditors, mediators, therapists, multiple testing, child support payments, financial sanctions etc) Parents engaged in long custodial conflicts, that have been going on for many years usually represent themselves in court without having adequate legal knowledge, or give up the fight because they cannot afford legal representation. Even with access to funds, justice is not always assured. There is a clear pattern in family court proceedings (in the U.S. and internationally) that courts are awarding custody to abusive or unfit parents, and stripping the fit, loving parent of custody, visitation and even their parental rights. 

Source: http://www.clipartbest.com

 

 Conclusion:

Systemic problems in family court, and its failures to recognize and address domestic violence (and parental alienation, DV by Proxy) need to be identified in order to make meaningful change. Identifying the problems must include auditing, and examining the roles of the judge, GAL, and other family court professionals with transparency.

Understanding the impact, and consequences, of family court litigation on parents involved in proceedings, and their children, is also a vital part of reform. Parents seeking to be part of the reform process, and speaking out, should be treated with dignity and respect. These parents face great risks for offering their testimony.

— EJ Perth, 2015