WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Wednesday, November 9, 2011

A Response to "What Triggers Violence in Custody Battles in the United States?"

A colleague in California, Attorney Mark B. Baer, recently wrote a post discussing some horrific and recent tragedies of domestic violence that have occurred during the process of divorce or child custody court cases.

Attorney Baer points out that our courts are not designed to deal with all of the emotions that come with a divorce, or a child custody dispute, and neither are most attorneys. Attorney Baer then posits a direct connection between these cases of violence in divorce or child custody disputes, and concludes that the family law system in the United States is to blame for that violence.

We respectfully but strongly disagree. The frustrating delays and other inefficiencies of the court system are not the cause of domestic violence. Abusers, making their own choices, are the cause of domestic violence.

The following response was written jointly by Jonathan Eaton, Esq. and Justin Kelsey, Esq. as a reaction to Attorney Baer's article:

Attorney Baer's post describes two problems: (1) frustration borne from an extended court process and (2) domestic violence. He then assumes that one can lead to the other, and that therefore the alternatives to one (alternative dispute resolution instead of the traditional court process) would be an effective way to prevent or solve the other problem (domestic violence, particularly extreme cases of domestic violence). Attorney Baer's rationale is faulty because frustration with the court process is not the root cause of domestic violence.

Domestic violence is on the extreme end of the spectrum of controlling behavior. It occurs when one partner in a relationship desires to control the other, which may escalate to acts of emotional or physical violence. Although frustration with the court process could trigger a specific act of violence, simply avoiding court does not remove the underlying problem.

Furthermore, in cases where the controlling behavior has been an issue prior to the start of the divorce process, alternative dispute resolution could be used to continue a pattern of intimidation and abuse.

Mediation and collaborative divorce are voluntary, consensual processes. They require open and honest participation and if either individual is dissatisfied with the process, he or she may end it at any time. If an emotionally controlling individual is feeling that he or she is not getting his or her way in mediation or in the collaborative law process (in other words, feels as if he or she is not in control), then that process is likely to fail. If control is more important than resolution to a spouse, then they will revert back to their controlling behavior, regardless of the process being used.

Child custody battles can be the most emotionally charged family law disputes. Attorney Baer illustrates three examples of child custody disputes ending when one parent allegedly murdered the other (and sometimes the children and bystanders). It is impossible to know for sure whether any of these tragedies would have been avoided had the respective couples engaged in alternative dispute resolution, but it is unlikely that a person who is willing to resort to murder when they don't get their way was going to be satisfied with compromise. It is far more likely that an abuser would take advantage of alternative dispute resolution to get their way. Allowing abusers to control a situation so as to avoid outbreaks of violence is not a solution, it is tantamount to condoning their behavior and perpetuates the pattern of control.

Attorney Bear is correct that for many cases alternative dispute resolution can greatly increase the likelihood of a peaceful resolution, and successful co-parenting plans. However, in cases where there is a history or risk of domestic violence, the delays and frustrations of the court system are far outweighed by the protections that the court can provide to abuse victims (such as orders from protection from abuse).

Like Attorney Bear we encourage potential divorce litigants to consider the alternative ways to get divorced, but at the same time we feel it is very important to recognize that his article significantly misrepresents the causes of domestic violence:

The court does not create abusers, and there is no excuse for domestic violence.

At Kelsey & Trask, P.C., we pride ourselves in our mediation and our collaborative law practice, and we hope that it becomes more widespread as more individuals become aware of the alternatives to the traditional litigation track. In general, we feel that it is the most effective forum for accomplishing what is in the best interests of the children. However, we recognize that it is not "one size fits all."

In Massachusetts, our probate and family courts have become so backlogged with cases that clerks and registers have cut their hours working with the public in order to allocate more of their hours to performing the administrative work necessary to move the existing cases along. The traditional litigation process is too long, and often very frustrating for people already transitioning through a difficult period. If you and your spouse are willing to participate openly and honestly in mediation or collaborative divorce, then we encourage you to learn more about these processes.

But if you are a victim of domestic violence, your first priority should be the safety of you and your children. You should explore all of your options, including the protections offered by the court. If you or someone you know suffers from Sexual or Domestic Violence, call the National Domestic Violence Hotline at 1-800-799-SAFE, or if you live in Massachusetts check out these resources available on the Massachusetts State website, and seek help.

5 comments:

  1. Justin, thank you for your comment and for the article you and Jonathan Eaton, Esq. wrote in response to it. I think that both of you are off base in your understanding that I am blaming a frustration with the court process for causing domestic violence. I did no such thing. I blamed the litigation system, which may even involve attorneys who are negotiating agreements in a family dynamic based upon legal constructs that created "rights" and "obligations" and do not take into account "values", "goals", "needs" and "interests." I recently attended a seminar wherein they used the example of a couple fighting over ten (10) oranges. Husband hires his litigator to obtain all ten (10) oranges and wife does the same. The lawyers run up massive fees "fighting to the death" in order to obtain their client's desired result -- all ten (10) oranges. Ultimately, the matter makes its way before a Judge, who orders that each of them receive five (5) oranges. Unfortunately, neither was satisfied and nobody ever inquired as to WHY each of them wanted the ten (10) oranges BECAUSE in traditional litigation -- IT IS BASICALLY IRRELEVANT. It turns out that wife wanted the zest from all ten (10) oranges and the husband wanted the juice from all ten (10) oranges. Had anyone bothered considering the underlying needs and interests of the parties, it would have been possible to have satisfied each of them completely by removing the skin of all of the oranges and giving that to wife and giving the remainder of all of the oranges to husband.

    The frustration with the court process is ONLY one aspect of the traditional litigation process that DOES NOT work in a family dynamic and results in an escalation of emotions and an inability for the parties to see matters clearly. In fact, I used the following quote in my article, with a link to the material from which it came: "Moreover, 'psychologists note in child custody cases, when a parent doesn't get what he or she wants, they often feel their parenting is being attacked. This can bring on a deep, different kind of rage. And in these cases, parents dueling for custody become so adversarial they forget what's best for the child.'"

    Shawn Weber of Brave, Weber & Mack, a Professional Law Corporation make the following statement on his blog in response to my article: "Mr. Baer sums up my thoughts regarding the seeming increase in domestic violence in custody disputes. I am convinced that the adversarial litigation process for resolving family issues has contributed significantly to the level of hostility between parties. While some parties will be dangerously violent no matter what environment they are in, we can help reduce conflict in many cases as attorneys be referring folks to forms of alternate dispute resolution such as mediation or collaborative divorce. Even in a litigation context, attorneys should be careful not to “fan the flames” of the conflict. Much can be done to reduce the chances that a particular family will move into dangerous territory."

    Mr. Weber's analysis of my article is what I meant to convey AND I agree with his and your statement that "some parties will be dangerously violent no matter what environment they are in." Furthermore, like you, I do not believe in a one-size-fits-all approach. Moreover, neither mediation or collaborative divorce are necessarily appropriate in situations in which domestic violence exists or when the safety of the child is a risk. In fact, it is appropriate to do a domestic violence assessment to determine whether some manner of consensual dispute resolution is appropriate in a particular case.

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  2. Mark,

    Thank you for your thoughtful reply. I agree with you almost completely. Litigation increases animosity between parents, and fails to encourage interest based negotiation which is the basis for successful mediation and collaborative divorce. It's even been shown in a study that the non-custodial parent is more likely to be involved in the child's life after mediation than litigation (http://kelseytrask.blogspot.com/2010/11/dramatic-impact-of-mediation-on.html).

    Where we disagree, however, is with your closing in your article: "It seems to me that those responsible for the family law system's resistance to change are ultimately responsible for the injuries and deaths that occur as a result of the violence that arises from custody battles in the United States."

    The system could be better, and we as practitioners in that system have a duty to our clients to help ease the trauma that they experience when going through a divorce. The lawyers and lawmakers who have failed in that duty are failing to help litigants and their children, but that does not make them ultimately responsible for the conflict in those people's lives. Those individuals are responsible for their own conflict, and those abusers who resort to conflict should be given no excuse for their actions. Only the abusers who commit violence are ultimately responsible for that violence.

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  3. I agree with both of you except as follows:

    1. Power and control issues are exacerbated by the courts and many USE the system to abuse, and]

    2. We ALL have some degree of responsibility. We know better then the clients how the system acts as a feedback loop. If they have PTSD (as in the Seal Beach incident) we need to know anything could be a trigger. Just because we don’t stress over a continuance does not mean our clients don't.

    BTW there has been no mention of any DV finding in that case— that is, there may not have been any DV in the marriage. The man was described as changed after the accident that left him traumatized.

    But the system brings out the worst in everyone, and to deny it is specious.

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  4. In cases of Violence, safety takes center stage than mediation.

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  5. Violence is really a very serious problem now a days and it can be done from both sides. William C. Behrndt

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