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Through the Eyes of a Child: Impact and Measures to Protect Children in High-conflict Family Law Litigation

Family Law

A lawyer confidently strides into the courthouse. To the client, it is like being wheeled into the operating room for the removal of cancer. Fear, gut-wrenching uncertainty and ignorance control the client’s emotions, as he or she realizes that his or her future or that of a child, is being controlled by two lawyers and a stranger wearing a black robe instead of a surgical mask, all of whom are engaged in procedures that are completely foreign. Added to the foregoing is the embarrassment or humiliation of public airing of deeply personal matters. If such a system reduces otherwise strong, self-directed adults to depressed and possibly poorly functioning individuals, what does it do to a child who is the subject of such proceeding? Even adult children of the parties are grievously traumatized by their parents’ acrimonious dissolutions. What chance do minor children have to escape the fall-out when they are the subject matter?1

High-conflict family law litigation is extremely detrimental not only to the parents, but also to the children involved as well. The negative impact of this conflict flows to every aspect of the case. This article is intended not only for the family law practitioner, but also for litigants in family law cases in which highly contested issues involving children arise. Each parent’s affirmative obligation to encourage and nurture the relationship between the child(ren) and the other parent will be discussed. The harmful psychological effects on children resulting from high conflict or protracted litigation involving children’s issues will be explored, and an alternative to litigation, through the newly enacted statutory authority for parent coordination, will be addressed.

Each Parent’s Obligation to the Other
It is a basic proposition that a parent has a natural legal right to enjoy the custody, fellowship, and companionship of an offspring.2 The only limitation to this rule of parental privilege is that between parent and child, the ultimate welfare of the child must be controlling.3 The obligation of each parent to encourage and nurture the relationship between the child[ren] and the other parent is constitutional in nature. This obligation flows not only to the other parent, but also to the child[ren]. In Schutz v. Schutz, 581 So. 2d 1290 (Fla. 1991), the Supreme Court of Florida reviewed an order requiring the mother to “do everything in her power to create in the minds of [the children] a loving, caring feeling toward the father … [and] to convince the children that it is the mother’s desire that they see their father and love their father.”4 The order further provided that a breach of the obligations imposed “either in words, action, demeanor, implication or otherwise” would result in the “severest penalties. . . including contempt, imprisonment, loss of residential custody or any combination thereof.”5 The record reflected ongoing acrimony and animosity between the parents. The mother challenged the order on First Amendment grounds alleging that it violated her right to freedom of speech.

The Florida Supreme Court interpreted the order as requiring the mother to make a good faith effort to promote frequent and continuing positive interaction between the children and their father and to refrain from doing or saying anything to defeat that interaction. She could meet this obligation by encouraging the children to interact with their father, taking good faith measures to ensure that the children visit and otherwise have frequent and continuing contact with their father, and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction.6 The Supreme Court interpreted the order such that it did not impermissibly require the mother to express opinions she did not hold.

Following an analysis of the balance between the mother’s right to free expression against the state’s parens patriae interest in assuring the well-being of the children, the court found a substantial state interest in restoring a meaningful relationship between the children and their father, thereby promoting the best interests of the children.7 Any restriction placed on the mother’s freedom of expression is essential to the furtherance of the state’s substantial interests. Affirmative measures taken by the mother to encourage meaningful interaction between the children and their father would be for naught if she were permitted to contradict those measures by word or deed.8 A parent has a constitutionally protected “inherent right to a meaningful relationship with his children.”9 In this case, the father’s personal rights were aligned with the state’s interest in promoting meaningful family relationships.

In addition to the constitutional implications of hindering the other parent’s relationship with the child(ren), there may well be contempt consequences as well. A parent can be held in contempt of court for violation of an order relating to parenting issues when the language of the order is clear and precise.10 In Levy v. Levy, 861 So. 2d 1211 (Fla. 3d DCA 2003), the marital settlement agreement and final judgment provided in part that “each parent shall encourage and foster the maximum relations, love, and affection between the minor children and the other parent; shall not obstruct or interfere with the other parent’s right to companionship with the minor children; and shall discuss and work together in an effort to reach a joint decision on all major decisions involving the children.”11

Sound familiar? This language, or similar verbage, is found in almost every marital settlement agreement or more recently, the parenting plan. The parenting plan is a document that governs the relationship between the parties relating to decisions involving their child(ren) and contains a time-sharing schedule. The establishment, creation, or development of a parenting plan is mandatory.

The parties in Levy engaged in acrimonious and high-conflict litigation. The trial court found that the former wife’s actions clearly violated the terms of the agreement and found her in contempt. On appeal, the finding of contempt was upheld, although there is no reference in the appellate opinion to the specific actions in which the former wife engaged. The appellate court relied upon the clear and precise language of the agreement itself, as well as Schutz. Courts have held, however, that a purge provision that a parent “not expose the children to his hostility toward the Former Wife” was reversed. The court held that the purge language was not clear and precise and was too broad and indefinite to be enforceable. The exact conduct that might amount to hostility was unclear and susceptible to varying interpretations.12

Litigants and practitioners should also be aware that the Department of Children and Families (formerly the Department of Health and Rehabilitative Services) has prosecuted dependency actions arising from the acrimonious relationship of a child’s divorcing parents alleging harm to the child. These cases usually stem from an initial confidential call or complaint made to the department about these actions. In cases that have been appealed, the appellate courts have reversed an adjudication of dependency, based primarily on the department not having met the standard of abuse, abandonment, or neglect. In cases that have not been appealed, a majority of those cases are investigated by the department, closed as unfounded or with some indicators, and the department makes a recommendation to attend an authorized parenting class.

The trial court in a dependency action cannot base its decision merely on the best interests of the child without consideration of the dependency status, which requires a finding of abuse, abandonment, or neglect.13 It should be noted that in the appealedcases, the parties had separated, and any emotional abuse occasioned upon the child by the face-to-face conflict between the parents had subsided. There was no finding of harmful behavior causing a present threat or danger to the child. Whether courts in the future determine that emotional trauma to the child as the result of high-conflict litigation involving “custody” of children constitutes a present threat to the child or abuse under the dependency statute remains to be seen.

Psychological Impact of High-conflict Divorce Upon Children
The definitions of what constitutes a high-conflict divorce are varied. The studies are vague and inconsistent about how to define “high-conflict.” One of the difficulties in the psychological studies is the lack of baseline measures for the normal level of conflict one would expect in most divorcing families. Without an established baseline, it is impossible to accurately determine the exact level of conflict that can be defined as “high-conflict.”14 However, a number of clinical and empirical studies are clear about their conclusions regarding the danger to children of exposure to high-conflict between parents.

For high-conflict divorces, the typology of external markers and relationship characteristics are as follows: External markers of the family include criminal convictions, involvement of child welfare agencies in the dispute, several or frequent changes in lawyers, frequent court hearings, the overall length of time it takes for the case to settle, and a history of contact or timesharing denial.15

Individual and relationship characteristics include a history of mental health difficulties (including depression, anger, withdrawal, and noncommunicative behavior), history of violent and abusive behavior, a tendency to vilify the other parent, inability to separate the parent’s needs from the child’s needs, rigid and inflexible thinking about relationships and child development, high degree of distrust, a tendency toward enmeshment rather than autonomy, poor sense of boundaries, a high degree of competitiveness in the marriage and in the separation, the amount of verbal and physical aggression between the parents, a tendency to involve the children in disputes, andpatterns of alienating the child from the other parent.16

The effect of high-conflict divorce on children, as a group:

roughly doubles the rate of emotional and behavioral adjustment problems in children. . . . The effects on boys appear to be more immediate and dramatic, especially in mother-headed households. There are increases in aggressive, disruptive, acting-out behaviors. Boys in single-mother households are considered to be “developmentally vulnerable” and at risk for high levels of acting out behavior.17

Girls seem to fare somewhat better (provided mother doesn’t re-marry), and the effects can be minimal, until adolescence.

[Girls] show no increased risk of behavior problems, as compared with girls from intact families, until adolescence. Then, they show increased rates of running away, skipping school, sexual promiscuity, and acting out. These girls are more likely to drop out of school and become pregnant outside of marriage. This has been dubbed “the sleeper effect.”18

The effects of chronic conflict on children of either gender also subject the child to “a feeling of chronic stress, insecurity, and agitation; shame, self-blame, and guilt; a chronic sense of helplessness; fears for their own physical safety; a sense of rejection, neglect, unresponsiveness, and lack of interest in the child’s well being.”19

The adult children of divorce experience lower levels of reported happiness, higher levels of psychological problems, lower levels of marital happiness, and a higher rate of divorce in their own marriages. This is known as the intergenerational transmission of divorce. Women who come from divorced homes are more likely to have their own marriages end in divorce than men from divorced homes. When both partners come from divorced homes, the chances of their own marriages ending in divorce are triple those of couples where both grow up in intact homes.20

Children of divorce have “a tendency toward lower rates of education, early marriage, living together before marriage, and a group of behaviors which can be described as: lower commitment to marriage, infidelity, problems with anger management, feelings of insecurity, neediness, demandingness, denial and blame, contempt, and poor conflict resolution skills.”21

The effects of divorce on children occur largely through the effects of inter-parental conflict on children, both before and after the divorce…. The type of conflict matters. Children are more negatively affected by conflict that is open, attacking (both verbally and physically), and where the children are exposed to the conflict and caught up in it.22

Parent Coordination
Parent coordination has existed for many years and is a tool to reduce high-conflict litigation. It is a method of child-focused alternative dispute resolution. Prior to the enactment of F.S. §61.125, the courts did not have the authority to refer the parties to parent coordination, absent consent. The court now has that authority in any case involving the creation or implementation of a parenting plan (both pre- and post-judgment), and in which a judgment or order has been sought or entered adopting, establishing, or modifying a parenting plan.23 The statute provides, however, that the court may not refer a case with a history of domestic violence to parent coordination unless both parties consent, each party has been offered the opportunity to consult with an attorney or domestic violence advocate prior to giving consent, and appropriate safeguards relating to safety are in place.24

Additionally, the court may not refer a case to parent coordination without the consent of the parties unless there is a finding that the parties have the financial ability to pay the parenting coordination fees and costs. If the case involves an indigent party, the court may not order parenting coordination unless public funds are available to pay the indigent party’s portion of the fees and costs, or the nonindigent party consents to paying all costs and fees.25

In light of the fact that the court cannot delegate or abdicate its discretion and authority regarding a determination of the best interests of the children,26 the parent coordinator has no decision-making authority unless prior approval of the parties and the court has been obtained. Decision-making authority of the parent coordinator must be limited and within the scope of the court’s order of referral.27

Although the statute provides that the parent coordinator may make recommendations,28 those recommendations may be made to the parties only and not to the court. With limited exceptions, all communications made by, between, or among the parties and the parent coordinator during the sessions are confidential and the parties and parent coordinator may not testify or offer evidence concerning what occurred at any parent coordination session.29 The exceptions to confidentiality include only:30

• Communications necessary to identify, authenticate, confirm, or deny a written agreement entered into by the parties during parenting coordination;

• The testimony or evidence necessary to identify an issue for resolution by the court without otherwise disclosing communications made by any party or the parenting coordinator;

• The testimony or evidence limited to the subject of a party’s compliance with the order of referral to parenting coordination, orders for psychological evaluation, counseling ordered by the court or recommended by a health care provider, or for substance abuse testing or treatment;

• The parent coordinator reporting that the case is no longer appropriate for parent coordination or that the parent coordinator is unable, unwilling, or unqualified to continue to serve, and a successor parent coordinator should be appointed;

• The testimony or evidence necessary to protect any persons from future domestic violence, child abuse, neglect, or abandonment, or abuse, neglect, or exploitation of an elderly or disabled adult.

The parties may, however, agree that the testimony or evidence should be permitted, and may waive the confidentiality provisions of the statute.

Despite the confidentiality provisions of the statute, the parenting coordinator is required to advise the court, by affidavit or verified report, and without notice to the parties in the event of an emergency. An emergency is defined as when the parent coordinator has reasonable cause to suspect that a child will or is suffering from abuse, neglect, or abandonment, a vulnerable adult is or has been abused, neglected, or exploited, or a party is currently or is expected to wrongfully remove the child from the jurisdiction of the court without prior court approval.31 The parenting coordinator is also required to advise the court, by affidavit or verified report, and with notice to the parties, of any final order or injunction for protection against domestic violence entered against either party, or the arrest of a party for an act of domestic violence.32 The statute further delineates the qualifications and educational requirements necessary for a parent coordinator as well as grounds for disqualification.33

Conclusion
The effects of high-conflict litigation can be devastating to the children involved. Divorcing parents need to understand how their actions and the animosity they exhibit toward the other parent impacts the children in negative and destructive ways. There are alternatives to protracted, high-conflict litigation, which include many avenues of alternate dispute resolution. The court now has in its arsenal against the detrimental effects of litigation on children the option of appointing a parent coordinator to aid in the reduction of conflict between the parents.

The trial court must be tough on parents whose conduct before, during, and after dissolution goes out of control or becomes infantile, and affects the well-being of their offspring. Appellate courts must bolster trial courts’ efforts to curb the deleterious effects on children of bitter squabbles between inadequate parents. This affirmance is a positive signal to the trial courts. I hope the domestic relations bar will pursue a vigorous, responsible role in dissipating uncontrolled domestic situations, support the trial court’s rigorous orders for the children’s protection, notwithstanding the protests of the out-of-control adults, and not become infected with the acrimony of their clients in dealing with their opposing counsel.34

1 Esdale v. Esdale, 487 So. 2d 1219, 1221 (Fla. 4th D.C.A. 1986) (Glickstein, J., specially concurring).

2 Kent v. Burdick, 591 So. 2d 944, 996 (Fla. 1st D.C.A. 1991).

3 Id.

4 Schutz, 581 So. 2d at 1292.

5 Id.

6 Id.

7 Id. at 1293.

8 Id.

9 Id.

10 When an obligation is sought to be enforced by the contempt powers of the court, the order must be precise in its commands. Lawrence v. Lawrence, 384 So. 2d 279 (Fla. 4th D.C.A. 1980) (“One may not be held in contempt of [c]ourt for violation of an order or a provision of a judgment which is not clear and definite so as to make the party aware of its command and direction.”); and Marcus v. Marcus, 902 So. 2d 259 (Fla. 4th D.C.A. 2005).

11 Levy, 861 So. 2d at 1212.

12 Lanza v. Lanza, 804 So. 2d 408 (Fla. 4th D.C.A. 2001).

13 W.T. v. Department of Children and Families, 787 So. 2d 184 (Fla. 5th D.C.A. 2001); B.C. v. Department of Children and Families, 846 So. 2d 1273 (Fla. 4th D.C.A. 2003); and Jones v. In the Interest of A.W., 519 So. 2d 1141 (Fla. 2d D.C.A. 1988).

14 Glenn A. Gilmour, High-conflict Separation and Divorce: Options for Consideration (2004), http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2004/2004_1/index.html.

15 Id. at n. 16 (citing Ron Stewart, The Early Identification and Streaming of Cases of High-conflict Separation and Divorce: A Review, Ottawa: Department of Justice Canada (2001-FCY-7E/7F)).

16 Id.

17 Elizabeth Ellis, The Trowbridge Foundation, What Have We Learned from 30 Years of Research on Families in Divorce Conflict? at 2, citing Elizabeth Ellis, Divorce Wars, Interventions with Families in Conflict (APA Books 2000), http://www.familylawwebguide.com.au/library/spca/docs/Families%20in%20Divorce%20Conflict.pdf.

18 Id.

19 Id at 3.

20 Id.

21 Id at 2.

22 Id. at 3.

23 Fla. Stat. §§61.125(1) and (2) (2010).

24 Fla. Stat. §61.125(3) (2010).

25 Fla. Stat. §61.125(6) (2010).

26 McAlister v. Shaver, 633 So. 2d 494 (Fla. 5th D.C.A. 1994); Lane v. Lane, 599 So. 2d 218 (Fla. 4th D.C.A. 1992); Bolton v. Gordon, 201 So. 2d 754 (Fla. 4th D.C.A. 1967).

27 Fla. Stat. §61.125(1) (2010).

28 Id.

29 Fla. Stat. §61.125(7) (2010).

30 Fla. Stat. §§61.125(7)(a) through (i) (2010).

31 Fla. Stat. §61.125(8)(a) (2010).

32 Fla. Stat. §61.125(8)(b) (2010).

33 Fla. Stat. §§61.125(4) and (5) (2010).

34 Tressler v. Tressler, 539 So. 2d 522, 523 (Fla. 4th D.C.A. 1989) (J. Glickstein, specially concurring).

Susan W. Savard is an associate of Michael R. Walsh, P.A., in Orlando. Ms. Savard received her B.S. from Thomas Edison University (2001, academic honors) and her J.D. from Barry University School of Law (2005, magna cum laude). She serves on the board of directors of the Central Florida Family Law American Inn of Court, is a member of The Collaborative Family Law Group of Central Florida, Orange County Bar Association (Family Law Executive Committee officer), and is actively involved in The Florida Bar Family Law Section (member of the section’s Executive Council).

The author thanks Barbara E. Kelly, Ph.D., for her input and guidance relating to the psychological issues.

This column is submitted on behalf of the Family Law Section, Peter Gladstone, chair, and Laura Davis Smith and Ingrid Keller, editors.

Family Law