Published in Family Advocate, Vol. 22, No. 4, (Spring 2000) p. 1013. © 2010 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

It is estimated that 10 to 20 percent of divorced spouses are so bent on revenge and retribution that they forget how harmful their fighting can be to their children. Adults often are unaware that divorce is the saddest experience a child can endure—even sadder than the death of a parent. After a mother or father dies, there generally is a sense of closure and an understanding of life’s inevitable course. Divorce, on the other hand, presents a far more confusing situation. The parents are no longer together, yet they are both alive and in most cases still physically present. How children respond to divorce depends on their parents’ conduct during and after it. The major hazard for children arises when ongoing conflict diminishes their parents’ capacity to parent. Studies have shown that children of divorced parents who express ongoing conflict, hostility, and bitterness toward each other are far more likely to suffer severe emotional harm. Overt strife can take many forms, ranging from the “modest” abuses of noncompliance with established pickup and dropoff times; withholding of child support; sporadic, unwarranted cancellation of parenting time and telephone contact, to the extreme of kidnapping.

Typical examples of gameplaying by a spiteful residential parent may include denying parenting time based on spurious claims of illness or intentionally scheduling children’s activities to conflict with the other parent’s parenting time. The offending parent may use more subtle means, such as brainwashing, programming, bribery, or demeaning conduct to interfere with a parental relationship. Examples of brainwashing, alienation, and programming include one parent’s saying disparaging things about the other, while extolling the benefits of his or her own relationship.

An estranged father may say provocatively, “Is your mom still seeing that same man? Watch out for him. There’s something weird about that guy.” One parent may criticize or attack the other’s lifestyle; ignore the other parent in front of the children; use the children as messengers; or get the children to align against the other parent. He or she also may attempt to instill distrust or fear or a belief that the other parent is unable to properly care for the children. The offender will attempt to rationalize his or her actions as being in the best interests of the children. In fact his or her motivations and actions are, consciously or unconsciously, often motivated by continuing hostility against the former spouse.

Children’s reactions to the ongoing war will vary based on their ages and emotional development. They may react with anger, anxiety, insecurity, rage, fright, panic, nightmares, alignment with one parent, divided loyalties, loss of selfconfidence, diminished selfesteem, depression, suicidal feelings, damaged selfconcept, blurred sexual identity, fear, sadness, guilt, loneliness, rejection, emotional and/or physical regression, sleep disorders, sexual problems, school maladjustment, physical difficulties, eating disorders, selfpunishment, social withdrawal, rebelliousness, mood swings, substance abuse, or selfinjurious behavior.

Must the combatants continue to escalate the conflict or are remedies available to diffuse it? Initially, it is important to understand the underlying reasons for the conflict. Disputes in the postdivorce context most frequently arise because of one or both partners’ inability to achieve a final emotional separation, i.e., at least one of them must stay emotionally involved with the other. Frequently one parent believes that the divorce is a muchneeded solution to an intolerable marital relationship, whereas the other is unable to relinquish the marital bond. One spouse may feel so deeply wounded and enraged that he or she cannot let go. The motive for the continuing conflict is neither reconciliation nor emotional support. The ties that bind and drive the battle are self justification and punishment of the ex spouse.

A fourstep approach

Your first step toward reducing hostilities should be to help the hostile parent understand the basis for his or her actions and seek counseling to ameliorate emotional issues that fuel the conflict. Avoid the trigger issues, which are really an excuse to fight. You need not knuckle under, but at the same time you need not charge every time your former spouse waves a red flag. Perhaps a change in communication is warranted (i.e., write notes about visiting schedules rather than talking face to face). Consistently refuse to perpetuate the destructive dance.

Second, participate in what many court systems call parent education programs, either before or after the divorce. Such programs are in place in more than 20 states and are designed to educate parents about the emotional, economic, and educational problems their children may experience as a result of the divorce. They also explain how prolonged parental conflict can exacerbate children’s problems. Parental attendance at educational forums can reduce the conflict by reminding parents of their children’s needs, by facilitating communication, by providing information about helpful community resources, and by encouraging the parties to develop a workable postdivorce coparenting plan. Ask your lawyer for more information.

Third, consider using postdivorce custodial mediation or arbitration. Mediation is a dispute resolution process involving a trained, neutral lawyer or mental health professional. The mediator helps the parties reach an agreement without litigation. Often the informality of mediation allows parents to fashion creative, flexible solutions to postdivorce parenting and communication problems. Arbitration involves a hearing, not with a judge but with a private arbitrator, who is usually an experienced attorney. Procedures are less formal than in a court setting, and rules of evidence are not as strictly applied. The arbitrator listens to the parties and makes a binding decision about how best to resolve differences. That decision is subject to limited review by the courts.

Before we move to the fourth and final stage of action, special consideration must be given to relocation and to spousal and child abuse. It is estimated that more than half of all custodial mothers move at least once in the first five years after a divorce. Relocation often is an economic decision, and conflict seems irreconcilable. The custodial parent wants to choose freely where to live, whereas the nonresidential parent seeks to preserve an ongoing relationship with the child. To complete the triangle of conflict, the child has a primary birthright to a postdivorce relationship with both parents. As if the competing interests of parents and child were not tangled enough, the entire scenario is further complicated by vague and conflicting laws and judicial decisions. Most important, virtually no relevant, objective information exists about the impact of relocation on children.

Although most courts and legislatures make decisions based on the “best interests of the child,” it is often the parents’ best interests that are paramount. In making such decisions, remember: Your child has a right to an appropriate and ongoing relationship with both parents. Each parent should put selfinterest aside and focus on the child’s best interests. When spousal abuse or child abuse has occurred, joint decision making is simply not appropriate and must be avoided. Regardless of the circumstances, the abuser must be dealt with immediately and effectively. In cases of actual abuse, the victim’s physical safety is paramount. Appropriate criminal, judicial, and mental health professionals must use the force of law to stop the oppression swiftly.

The fourth and final step is to seek assistance from the court. California and Connecticut have led the way in developing creative solutions to deal with the highconflict parent who continues the battle with endless skirmishes or relitigation.

In California, courts attempt to have the parties stipulate to the use of a privately paid special master. The special master is a family law attorney or mental health professional who supervises the parties’ conduct on a daily basis, interceding directly in the dispute and making parental decisions when the parties are unable to do so. Sometimes called “wise person,” “parenting coordinator” or “custody commissioner,” a special master may educate, mediate, or arbitrate a dispute.

In Connecticut, families at an impasse are generally assigned to the Regional Family Trial Docket (RFTD). Parental participation is free, and volunteer lawyers and family therapists act as special masters. In each case, counsel is appointed for the children. The parents and children must have undergone a recent custody evaluation.

The parties must submit proposed orders outlining the requested custody arrangement or contempt sanctions, financial information, and a list of witnesses with their expected testimony. The parties then spend a full day with a team of special masters (an attorney and mental health professional) in an attempt to resolve the conflict. In 15 percent of cases where resolution fails, a trial follows.

If you have a matter in New York City or the surrounding counties of Westchester, Putnam, Nassau or Suffolk and wish a consultation, please contact us.