High-conflict Separation and Divorce: Options for Consideration



6.1 United States

6.1.1 Idaho

Idaho appears to be the American state that has most fully addressed the problem of high-conflict divorce. In 1996, the Idaho Bench/Bar Committee to Protect Children of High-conflict divorce published a report to the Idaho Supreme Court and the Idaho State Bar Family Law Section (Mauzerall et al., 1997). The Bench/Bar Committee had been created and charged by the Idaho Supreme Court to "formulate concrete recommendations for financially feasible, practical and judicially relevant ways for judges to deal with high-conflict divorces involving children." Subsequently, in 1998, a 222-page "Benchbook" on high-conflict divorce, not counting appendices, was published as a tool for judges. The chapters of this Benchbook discuss the impact of high conflict on children; the Idaho Protocol for judges to protect children of high-conflict divorce; the current law on custody and visitation decisions in high-conflict cases; special custody considerations in domestic violence cases; evidentiary issues in high-conflict custody and visitation cases; court practices and procedures when issuing custody orders in high-conflict cases; enforcement of custody and visitation orders; mediation, evaluation and special masters; interstate and international custody issues; and other custody issues. Five appendices provide samples of a parenting plan agreement, an order appointing a guardian ad litem, the findings of a special master, and hypothetical cases for group discussion (Brandt, 1998).

The Benchbook sets out basic principles for protecting children in high-conflict divorce. Among these are the following (Brandt, 1998: 7-15):

  • (B) Experience demonstrates and research documents that divorce is frequently harmful to children. The harm to children is exacerbated by high conflict. In the cases of divorce involving children, neither parental conflict nor the judicial process should cause additional harm to children.

  • (C) The level and intensity of parental conflict is the most potent factor in children's post-divorce adjustment. Even expressions of anger between parents negatively affect children's emotions and behaviors. Research findings indicate that children exposed to anger showed increased negative behaviors and effect. Exposure to conflict led to more aggressive responses in boys and more withdrawal in girls.

  • (D) Children of high-conflict divorce need protection from the potentially harmful effects of the adversarial approach used in the judicial system to resolve disputes between parents. The judicial system, lawyers, mental health professionals, schools and community services must collaborate to assist parents in developing a plan for ongoing caretaking of children.

  • (G) A parenting plan will serve the best interests of the children only if it will minimize conflict, maximize time with each parent where appropriate, and meet the child's developmental needs. Unresolved conflict hurts children, therefore, parents should be encouraged to work out their own parenting plans.

  • (J) Providing court-connected services is essential to protecting children of high-conflict divorce.

This Benchbook has, as its centrepiece, a Protocol for judges to protect the children of high-conflict divorce. This Protocol defines a high-conflict case as one:

... on a continuum where parental conflict is anywhere from (1) verbal abuse with no threat or history of physical violence, threatening to limit access of other parent, threats of litigation, ongoing attempts to form a coalition with child against other parent around isolated issues to (2) endangerment by physical or sexual abuse, drug or alcohol abuse, severe psychological pathology (Brandt, 1998: 33).

Markers for high-conflict divorce include petitions for temporary custody; protection petitions, including child protection and domestic violence orders; family dysfunction, such as substance abuse; changes in attorneys; a child's refusal to visit a parent; and a parent's inability to separate a child's needs from the parent's needs. Another marker is divorce cases involving children from birth to age three, who warrant special scrutiny because of the extreme risk of psychological damage to these children of divorce (Brandt, 1998: 33).

The Protocol also has other elements. It addresses the need for public information on parental conflict. In this regard, judges need to take a leadership role in providing such information on high-conflict divorce to engage public interest. It also addresses the need for parent education and family court services assessment. For example, all parents filing for divorce attend a Divorce Parenting Orientation that includes information about the impact of divorce on children. A standard curriculum for facilitators, developed by the Idaho Supreme Court Family ADR (Alternative Dispute Resolution) Committee, assures that parents throughout the state receive critical information about divorce and parenting. After the Divorce Parenting Orientation, parents unable to develop a parenting plan need to be ordered into mediation or be referred by the court for an ADR assessment (Brandt, 1998: 34).

As well, the Protocol sets out guidelines for determining custody and visitation in violent parent cases. These in turn incorporate the protocol developed by Janet Johnston for high-conflict cases involving domestic violence in California. One of these guidelines is that joint legal custody is generally not appropriate when there is ongoing high conflict and potential for violence between parents, since joint legal custody usually requires considerable ability to work cooperatively in joint decision-making. Legal custody orders that keep tension and hostilities high or that maintain the risk of further violence are contrary to the spirit and intent of a joint legal custody arrangement. A general guideline on access/visitation argues that a child's exposure to parental conflict should be limited. All arrangements for contact between a child and a parent should be carefully structured to limit the child's exposure to conflict between the parents and to ensure the safety of all present. Also, frequent transitions and substantial amounts of time with both parents may not be advisable. There are also specific recommendations on supervised access and the assessment, treatment and representation of children (Brandt, 1998: 35-44).

The Protocol addresses alternative dispute resolution options for cases where parental violence is not present. For example, each judicial district must develop appropriate alternative dispute resolution options, as well as a core of mediators with specific training in high-conflict divorce mediation (Brandt, 1998: 44).

The Protocol addresses adjudication issues. As regards the scheduling/trial setting for high-conflict cases, the case needs to be given the earliest possible setting, in order to bring some closure to the legal battle. However, sufficient time needs to be allowed to permit the parties to exhaust ADR possibilities before the trial. If domestic violence or other considerations make ADR inappropriate, the trial should be held at the earliest possible opportunity. Generally, no custody/visitation hearings will be held before the moving party has attended the court-ordered Divorce Parenting Workshop or "divorce orientation" or "mediation class." A divorce parenting orientation is available weekly to parents in each district. The order to attend the Divorce Parenting Workshop advises the parties that they will be expected to submit a parenting plan after the workshop (Brandt, 1998: 44).

There are two recommended models of court scheduling to protect children from high-conflict divorce, which recognize rural and urban court differences. They are as follows:

  1. At the time of filing, parties are referred to the Divorce Parenting Workshop (available weekly), and within 30 days following the workshop they must file a temporary parenting plan. Parents must then file a final Parenting Plan within 60 days of filing the temporary one. If filing deadlines are missed, parties are ordered to case assessment or some form of ADR, and, if necessary, adjudication. Under this model, any trial setting would be 120–150 days following the date of the case filing.

  2. Upon the filing of the Answer or other pleadings indicating that custody issues are raised, an order to file a Parenting Plan within 30 days is entered. If the Parenting Plan is not filed, the file is pulled and given to the judge, who orders a Status Conference (may be held by telephone). If the judge determines during the Status Conference that the children need protection and it is a high conflict case, the case is placed on the "fast track" and a trial is scheduled within 90 to 100 days (Brandt, 1998: 44-45).

Pre-trial orders and pre-trial conference issues are also addressed. In a high-conflict custody adjudication, the court should consider whether the children should have independent representation, either by a guardian ad litem or by separate counsel. The decision about which to appoint depends upon the decision making capacity of the child. The parties are encouraged to stipulate the appointment of an expert to perform a custody evaluation (including a psychological assessment of the parties and a home study), in lieu of hiring separate experts for each side. Even if other forms of alternative dispute resolution have failed or have been deemed inappropriate due to concerns about domestic violence, the presiding judge may consider referring the case to another judge for a settlement conference focussing on the issue of custody. Also, in order to shorten the trial, the court may consider appointing a special master to conduct fact-finding on some or all of the issues (Brandt, 1998: 45-46).

At the trial or hearing itself, the judge should set the tone at the outset. He or she should make it clear to the parties and the attorneys that they are to present their case in a manner that reduces the level of conflict and hostility between the parties, and treats each parent with respect and courtesy. The judge needs to manage the trial to assure completion within the time allotted, in order to avoid having to finish it at a later date. If the judge doubts that the parties will complete their proof within the time allotted, he or she should limit the time each side has to present its case (charging cross-examination time to the side conducting the cross) (Brandt, 1998: 46).

The Protocol also sets out guidance for shared-parenting plans in high-conflict divorce cases. As a general rule, the higher the level of conflict, the more detailed the parenting plan should be (Brandt, 1998: 47-48).[3]

6.1.2 Oregon

The Oregon Judicial Department has produced an excellent overview of efforts in the United States to successfully intervene in high-conflict cases (Sydlik and Phalan, 1999).[4]

Under Oregon's family law statute, after the commencement of a suit for marital dissolution and before a divorce decree is granted, a court may provide for the care, custody, support and maintenance of minor children and for parenting time rights of the parent who does not have custody of the children. The policy of the State of Oregon regarding parenting is to: (1) assure minor children of frequent and continuing contact with parents who have shown the ability to act in their best interests; (2) encourage such parents to share in the rights and responsibilities of raising their children after they have separated or dissolved their marriage; (3) encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals if necessary; (4) grant parents and courts the widest discretion in developing a parenting plan; and (5) consider the interests of the child and safety of the parties in developing a parenting plan (Oregon Revised Statutes [O.R.S.], para. 107.095(b); s. 107.101).

Generally, in any proceeding to establish a judgement providing for parenting time with a child, a parenting plan must be developed and filed with the court. There are two types of parenting plan: general or detailed. A general parenting plan may include an outline of how parental responsibilities and parenting time may be shared, and may allow the parents to develop a more detailed agreement on an informal basis. However, it must set forth the minimum amount of parenting time and access a non-custodial parent is entitled to have. A detailed parenting plan may include, but is not limited to, provisions about the residential schedule; holiday, birthday and vacation planning; weekends (including holidays, and school in-service days preceding or following weekends); decision making and responsibility; information sharing and access; relocation of parents; telephone access; transportation; and methods for resolving disputes. When a parenting plan has been developed, the court must review it. If approved, the plan is incorporated into the court's final order. When so incorporated, the parenting plan determines parenting time rights (O.R.S., s. 107.102, para. 107.105(1)(b)).

If the parents have been unable to develop a parenting plan, the court must develop the plan in the best interests of the child, while ensuring that the non-custodial parent has sufficient access to the child to allow appropriate quality parenting time and assuring the safety of all parties. The court may deny parenting time to the non-custodial parent only if the court finds that it would endanger the health or safety of the child. The court must recognize the value to the child of close contact with both parents, and encourage, when practical, joint responsibility for the welfare of such children as well as extensive contact between the minor children of the divided marriage and the parties. If the court awards parenting time to a non-custodial parent who has committed abuse, the court must make adequate provision for the safety of the child and the other parent (O.R.S., para. 107.105(b)).

In determining custody of a minor child, the court must give primary consideration to the best interests and welfare of the child. In determining the child's best interests, the court must consider several relevant factors, including the interest of the parties in, and attitude toward, the child; the abuse of one parent by the other; and the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. However, the court may not consider such willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in a pattern of abusive behaviour against the parent or a child, and that a continuing relationship with the other parent would endanger the health or safety of either parent or child. If a parent has committed abuse, there is a rebuttable presumption that it is not in the best interests and welfare of the child to award sole or joint custody of the child to the parent who committed the abuse. In determining custody of a minor child, the court must consider the conduct, marital status, income, social environment or lifestyle of either party only if it is shown that any of these factors are causing or may cause emotional or physical damage to the child. No preference in custody is given either to the mother or the father. Following entry of a judgement, a court may enter ex parte a temporary order providing for custody of, or parenting time with, the child only if there is clear and convincing evidence that the child is in immediate danger (O.R.S., s. 107.137, s. 107.139).

Generally, even if one parent is ordered sole custody of a minor child, the other parent has the authority to: (a) inspect and receive school records and to consult with school staff concerning the child's welfare and education; (b) inspect and receive governmental agency and law enforcement records concerning the child to the same extent as the custodial parent may inspect and receive such records; (c) consult with any person who may provide care or treatment for the child, and to inspect and receive the child's medical, dental and psychological records; (d) authorize emergency medical, dental, psychological, psychiatric or other health care for the child if the custodial parent is unavailable; or (e) apply to be the child's conservator, guardian ad litem or both (O.R.S., s. 107.149, s. 107.154).

In any court order or decree granting custody of a minor child and parenting time or visitation rights relating to the child, the court must generally include in its order a provision requiring that neither parent may move to a residence more than 60 miles further distant from the other parent without giving the other parent reasonable notice of the change of residence (O.R.S., s. 107.159).

The courts cannot order joint custody unless both parties agree to the order. When parents have agreed to joint custody in an order or a decree, the court may not overrule that agreement by ordering sole custody to one parent. Modifying a joint custody order requires showing changed circumstances, such that the modification is in the best interests of the child. Inability or unwillingness to continue to cooperate shall constitute a change of circumstances sufficient to modify a joint custody order. When one parent requests the court to grant joint custody of the minor children of the parties, and the other parent objects to joint custody, the court must direct the parties to participate in mediation in an effort to resolve their differences concerning custody. The court may order the parents' participation in a mediation program established by the court or as conducted by any mediator approved by the court. If, after 90 days, the parties do not resolve their differences, the court determines custody (O.R.S., s. 107.169, s. 107.179).

The presiding judge of each judicial district must establish an expedited parenting time enforcement procedure that may or may not include a requirement for mediation. The procedure must be easy to understand and initiate. Generally, the court shall conduct a hearing no later than 45 days after the filing of a motion seeking enforcement of a parenting time order. Remedies that the court may order include: (a) modifying the provisions of the parenting plan by, for example, setting out a detailed parenting time schedule; and (b) ordering either or both parties to attend counselling or educational sessions that focus on the impact of violating of the parenting plan on the children (O.R.S., s. 107.434).

The statute also addresses cases of abuse of children and former spouses, among others. "Abuse" is defined as: (a) attempting to cause or intentionally, knowingly or recklessly causing bodily injury; (b) intentionally, knowingly or recklessly placing another in fear of imminent bodily injury; (c) causing another to engage in involuntary sexual relations by force or threat of force.

Any person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief, if the person is in imminent danger of further abuse from the abuser. Imminent danger includes but is not limited to situations in which the abuser has recently threatened the petitioner with additional bodily harm. If this is proved, the court must, if requested by the petitioner, make an order that can include that (a) temporary custody of the children of the parties be awarded to the petitioner; (b) the respondent be required to move from the petitioner's residence; (c) the abuser be restrained from intimidating, molesting, interfering with or menacing the petitioner, or attempting to do so; and (d) the abuser have no contact with the petitioner in person, by telephone, or by mail except as described in the parenting time ordered. If the court awards parenting time to a parent who committed abuse, the court must adequately provide for the safety of the child and the petitioner. The order of the court may include that:

  1. exchange of a child between parents must occur at a protected location;
  2. parenting time be supervised by another person or agency;
  3. the abuser be required to attend and complete, to the satisfaction of the court, a program of intervention for perpetrators or any other counseling program designated by the court as a condition of the parenting time;
  4. the abuser not possess or consume alcohol or controled substances during the parenting time and for 24 hours preceding the parenting time;
  5. the abuser pay all or a portion of the cost of supervised parenting time, and any program designated by the court as a condition of parenting time; and
  6. no overnight parenting time occur (O.R.S., ss. 107.700-107.718).

Finally, Oregon also requires that each judicial district must provide a mediation orientation session for all parties in cases when child custody, parenting time or visitation are in dispute. The orientation session should be designed to make the parties aware of what mediation is, the mediation options available to them, and the advantages and disadvantages of each dispute resolution method. In addition, each judicial district must provide mediation in any case in which child custody, parenting time and visitation are in dispute. Each judicial district must also have developed a plan that addresses domestic violence issues and other power imbalance issues in the context of mediation orientation sessions and the mediation of any issue in accordance with guidelines that include: (a) recognition by all mediators that mediation is not an appropriate process for all cases and that agreement is not necessarily the appropriate outcome of all mediation; and (b) the implementation of a screening and ongoing evaluation of domestic violence issues for all mediation cases (O.R.S., s. 107.755).

Oregon has developed a manual of guidelines for developing domestic violence protocols for mediation. This manual includes a description of domestic violence; examples of other power imbalances that may affect the parties' ability to engage in an informed and fair process; the applicable statutory framework; an outline for developing a domestic violence plan and protocol; resources, including organizations to contact and articles to read; and sample protocols and forms used by various courts throughout the state. Each plan should have most of the following components: a policy/mission statement, a description of mediation techniques that are available, screening procedures, criteria for deciding whether to mediate, procedures for the parties to opt out of or terminate the mediation process, a statement of ground rules covering the parties' conduct during mediation (such that parties are to refrain from hurtful language), a safety plan to assure the safety of all concerned, and continuing education for mediators (Oregon Judicial Department, 1999).

In the context of high-conflict divorce, Oregon has a local and state group looking into the topic of high-conflict parenting plans, including sample forms that will hopefully and eventually be on the Oregon Judicial Department Web-site.[5]

6.1.3 Washington

Washington State's Parenting Act of 1987dispenses with the concepts of custody and access and focusses instead on decision-making and residential time (Parenting Act of 1987, Revised Code of Washington, c. 26.09). TheActbegins by asserting that parents have the responsibility to make decisions and perform other necessary functions necessary for the care and growth of their minor children. The best interests of the child is the standard by which the court determines and allocates the parties' fundamental responsibilities. The best interests of the child are ordinarily served when the existing pattern of interaction between a parent and child is altered only to the extent necessitated by the changed relationship of the parents or as required to protect the child from physical, mental or emotional harm. Mediation of the contested issues may be set before, or concurrently with, the settling of the matter for hearing. Mediation proceedings are confidential, and the mediator may interview the children if the mediator deems it necessary (Parenting Act, ss. 26.09.002, 26.09.015).

As part of a temporary maintenance or support motion, either party may request a domestic violence protection order or an anti-harassment protection order provided by statute on a temporary basis. The court may appoint an attorney to represent the interests of a children with respect to the provision of a parenting plan in an action for dissolution of a marriage or legal separation (Parenting Act, ss. 26.09.060, 26.09.110).

If a party fails to comply with a decree or a temporary order of injunction, the obligation of a party to make support payments or to permit contact with children is not suspended. An attempt by a parent, in either the negotiation or performance of a parenting plan, to refuse to perform the duties set out in the parenting plan or to hinder the other parent in performing his or her duties under the plan shall be punished by the court as a contempt of court. The court may order, in part, that the non-complying parent provide the other parent additional time with the child; pay to the other parent all court costs and reasonable attorney's fees incurred as a result of the non-compliance; and pay a civil fine of $100 to the other parent. A parent found guilty of such contempt, if able to comply with the parenting plan but unwilling to comply, may be jailed for a limited period of time until the order is complied with. Each party is required to file a proposed permanent parenting plan with the court and attach a verified statement that the proposed plan is made in good faith. Where mandatory settlement conferences are provided under court rules, the parents must attend a mandatory settlement conference (Parenting Act, ss. 26.09.160, 26.09.18).

The statute sets out the objectives of the permanent parenting plan as follows:

  1. provide for the child's physical care;
  2. maintain the child's emotional stability;
  3. provide for the child's changing needs as the child grows and matures, in a way that minimizes the need for future modifications to the permanent parenting plan;
  4. set forth the authority and responsibilities of each parent with respect to the child, consistent with the criteria set out in RCW 26.09.187 and 26.09.191 (see below);
  5. encourage the parents to meet their responsibilities to their minor children through agreements in the permanent parenting plan, rather than by relying on judicial intervention; and
  6. to otherwise protect the best interests the child (Parenting Act, s. 26.09.184).

The permanent parenting plan must contain provisions for the resolution of future disputes between the parents, the allocation of decision-making authority, and the residency of the child. A process for resolving disputes, other than court action, must be provided unless precluded or limited by Revised Code of Washington, section 26.09.187 or section 26.09.191 (the latter section is discussed below). A dispute resolution process may include counselling, mediation, arbitration by a specific individual or agency, or court action. In the dispute resolution process, generally the parents must use the designated process to resolve disputes relating to the plan, unless an emergency exists. A written record must be prepared of any agreement reached in counselling or mediation and of each arbitration award and a copy provided to each party. If the court finds that a parent has used or frustrated the dispute resolution process without good reason, the court shall award attorney's fees and financial sanctions to the prevailing parent.

The parties have a right of review from the dispute resolution process to the Superior Court. The plan must allocate decision making authority to one or both parties regarding the children's education, health care, and religious upbringing. Each parent may make decisions regarding the day-to-day care and control of the child while the child is residing with that parent. Where mutual decision making is designated but cannot be achieved, the parties must make an effort in good faith to resolve the issue through the dispute resolution process. The plan must include a residential schedule that designates in which parent's home each minor child shall reside on given days of the year, including holidays, birthdays and special occasions, consistent with the criteria in RCW sections 26.09.187 and 26.09.191 (Parenting Act, s. 26.09.184).

The court must not order a dispute resolution process, except court action, when it finds that any limiting factor under RCW section 26.09.191 applies (again, see below for a discussion of this section), or when it finds that either parent is unable to afford the cost of the dispute resolution process. Otherwise, in designating a dispute resolution process, the court must consider all relevant factors, including differences between the parents that would substantially inhibit their effective participation in the process; the parents' wishes or agreements and whether any such agreements were made voluntarily or knowingly; and differences in the parents' financial circumstances that may affect their ability to participate fully in a dispute resolution process (Parenting Act, s. 26.09.187).

Any court rules adopted for the implementation of parenting seminars must incorporate certain provisions. In no case should opposing parties be required to attend seminars together. Upon a showing of domestic violence or abuse, which would not require mutual decision making under RCW section 26.09.191 (see below), or upon a showing that a parent's attendance at the seminar is not in the child's best interest, the court must either waive the requirement of completion of the seminar or provide an alternative, voluntary parenting seminar for battered spouses. The court may also waive the seminar for good cause (Parenting Act, s. 26.12.172).

The court must order sole decision making authority to one parent when it finds that a limitation is placed on the other parent's decision making authority by RCW section 26.09.191; that both parents are opposed to mutual decision making; or that one parent is opposed to mutual decision making and this opposition is reasonable, based on specific criteria set out is the statute. These criteria include the existence of a limitation under RCW section 26.09.191; the history of participation of each parent in decision-making; and whether the parents have a demonstrated ability and desire to cooperate with each other in decision-making (Parenting Act, s. 26.09.187).

The court must make residential provisions for each child that encourage each parent to maintain a loving, stable and nurturing relationship with the child, consistent with the child's developmental level and the family's economic and social circumstances. The child's residential schedule must be consistent with RCW section 26.09.191. Otherwise, the court must consider several factors. The factor with the greatest weight is the relative strength, nature and stability of the child's relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions related to the daily needs of the child. Other factors include the wishes of the parent and the wishes of the child, if the child is sufficiently mature to express reasoned and independent preferences about the residential schedule, and the emotional and developmental needs of the child. The court may order that a child frequently alternate his or her residence between the parents' households for brief and substantially equal intervals of time only in certain circumstances, for example, if the parents have a satisfactory history of cooperation and shared performance of parenting functions, and are close enough geographically to be able to share these functions.

High-conflict situations are dealt with by RCW section 26.09.191. The permanent parenting plan must not require mutual decision making or designation of a dispute resolution process other than court action if it is found that a parent has engaged in willful abandonment that continues for an extended period of time or has substantially refused to perform parenting functions; has physically, sexually or emotionally abused a child; or has a history of acts of domestic violence (defined by statute) or of assault or sexual assault which caused grievous bodily harm or the fear of such harm. The parent's residential time with the child must also be limited if it is found that the parent has engaged in the conduct described immediately above or has been convicted as an adult of a sex offence. Also, the parent's residential schedule must be limited if the parent is residing with a person who has engaged in this conduct. Generally, a presumption is created that a parent who has committed, or resides with a person who has committed, a sex offence places the child at risk of abuse or harm when the parent exercises residential time with the child. There are various provisions detailing how the parent may rebut this presumption. There are also provisions that set out in detail when the court may order supervised or unsupervised contact with the child. For example, a court must not order unsupervised contact between an offending parent and a child of the offending parent who was abused by that parent (Parenting Act, s. 26.09.191).

In addition, RCW section 26.09.191 provides that the court may preclude or limit any provisions of a parenting plan if any of several factors exist, including a parent's neglect or substantial nonperformance of parenting functions; a long-term emotional or physical impairment that interferes with the parent's performance of parenting duties; a long-term impairment resulting from drug, alcohol or other abuse that interferes with the performance of parenting functions; the absence or substantial impairment of emotional ties between the parent and the child; "the abusive use of conflict by the parent which creates the danger of serious damage to the child's psychological development"; and a parent withholding from the other parent access to the child for a protracted period without good cause.

The court may interview the child in chambers to ascertain the child's wishes as to his or her residential schedule. The court may permit counsel to be present at the interview (Parenting Act, s. 26.09.210).

In 1999, the Washington Parenting Act Study was published (Lye, 1999). The goal of the study was to gather information about how parents seeking a dissolution of the marriage made arrangements for parenting, and how those arrangements operated after the marriage was dissolved. Parts of the study were based on focus groups with parents who had a court-approved parenting plan and interviews with professionals (e.g. judges, lawyers and psychologists) who had experience and expertise with the Parenting Act. The findings from the focus groups of parents included that parents found the civil justice system hard to access and utilize; that few parents exercise joint decision making; that many parents follow their parenting plans loosely; that parents are profoundly frustrated when an ex-spouse is uncooperative; and that domestic violence survivors find the civil justice system especially difficult to access and use, and often have parenting plans that they believe compromise their own and their children's safety. The findings from the interviews with professionals included that they strongly supported the Parenting Act; that the process of getting a finalized parenting plan is especially difficult for parents, especially those who are pro se litigants (those who represent themselves); that joint decision-making does not work well; that mediation is useful for formulating parenting plans and dispute resolution, except in cases involving domestic violence; and that the Parenting Act fails to adequately protect survivors of domestic violence. A representative sample of about 400 approved final parenting plans found that three quarters of plans specify joint decision-making; that 45 percent of the plans provided for a primary residential parent and an every other weekend schedule of alternate residential time for the other parent; that only a handful of plans provide for more alternate residential time than every other weekend, including 50/50 schedules; and that nearly one in every five plans has no residential schedule, leaving that to be agreed between parents or between the parent and child (Lye, 1999: i-ii).

As well, no single post-divorce residential schedule was demonstrated to be most beneficial for children. So long as there are not high levels of parental conflict, there are no significant disadvantages to children of shared or 50/50 schedules. Neither are there significant advantages to children of shared or 50/50 residential schedules. Parental conflict is a major source of reduced well-being among children of divorce, and shared or 50/50 residential schedules have adverse consequences for children in high-conflict situations. Shared or 50/50 residential schedules and frequent contact between the child and the nonresidential parent do not necessarily promote parental cooperation. On the other hand, increased nonresidential parents' involvement in their children's lives may enhance child well-being by improving the economic support of children (Lye, 1999: iii).

This study concluded that the Parenting Act works well for most families in Washington State, that the Act's policies are well supported, and that it is consistent with the findings of scholarly research about post-divorce parenting and child well-being. However, the study suggested several areas in need of improvement. Among these were that parents need more information about, for example, good language to use on the parenting plan (many parents found the language in the parenting plan form confusing), about creative residential schedules, about what mediation means, and about which parents are or are not good candidates for mediation. The study also argued that the routine use of joint decision-making in parenting plans should be reconsidered:

Most parents do not adhere to the joint decision-making provisions in their plans, and most professionals believe these provisions promote conflict. Parents should be provided with more information about the intent and meaning of joint decision-making and should be encouraged to formulate individualized plans for decision-making rather than routinely adopting joint decision-making. Joint decision-making should never be approved for families with a history of domestic violence (Lye, 1999: v).

The study also recommended, in part, that the monitoring and enforcement of the parenting plan provisions be strengthened. For example, at the time the parenting plan is finalized, parents should be provided with clear information on how to report violations of the parenting plan and how to seek redress. The study also concluded, from the comments of the majority of the parents and professionals, that parenting classes are extremely valuable. However, it suggested improvements. For example, survivors of domestic violence should not be required to attend parenting classes, since they may attend such classes and find their abuser present. Specialized information should be made available to domestic violence survivors (Lye, 1999: vi-vii).

In the wake of this study, a Task Group of the Domestic Relations Work Group of the Washington State Courts was charged to recommend specific legislation and/or court rules to respond to the study. As regards parenting plan forms, the Task Group recommended that the parenting plan forms be revised. Recommendations in this area included enhancing the graphic design of the forms; providing comprehensive directions for completing the form in simple language; defining all terms in the forms, such as "joint decision making" and "custodian"; identifying those sections mandated by statute and which are optional; including a clear mechanism for dispute resolution, a review mechanism and an explanation of how to modify the plan; and providing parents, at the time the plan is finalized, with clear information on how to report violations of the parenting plan and how to seek redress.

Concerning the substance of the residential schedules, it was recommended that the circumstances be clarified in the form instructions regarding when 50/50 residential schedules are permitted. The Task Force stated clearly that 50/50 schedules should never be allowed in families with high conflict or a history of domestic violence. The Superior Court Judges' Association should encourage each county to provide parents with information about agencies and individuals who can supervise alternate residential time and exchanges with children. Concerning alternative dispute resolution, the Task Group said that parents, attorneys, judges and facilitators need better information on the types of dispute resolution, when to use dispute resolution, and how to start the process.

With increasing caseloads, intensive early case management in family law cases could reduce the time required by the court to resolve high-conflict issues later. The Task Group recommended, in part, that alternative dispute resolution be developed for parents that would clearly define counselling, mediation and arbitration, and would provide step-by-step information about when and how to invoke the dispute resolution mechanism in parenting plan disputes. It also recommended that early intervention regarding parenting issues should be piloted to obtain early interventions of high-conflict families, early parenting evaluations, early education about parenting during and after dissolution, and options for the development of parenting plans. Regarding domestic violence, the Task Group recommended, in part, that each Superior Court distribute an information packet for domestic violence victims, explaining their right not to participate in programs that may be dangerous to them, such as parenting classes and mediation with their abuser, and explaining how to opt out of those programs.

Concerning the issue of education for judges, attorneys and parents/litigants, the Task Group noted that parenting plans are extremely valuable and recommended that they be enhanced. The recommendations here included that the Superior Court Judges' Association should recommend that each Superior Court provide parenting classes in a variety of formats, such as at the courthouse or other locations such as community centers, and at times (e.g. evenings and weekends) more convenient for parents, and in different formats such as videotapes, DVD and the Internet. The classes should address the effects of divorce on the child and the role of the divorced parent. The Task Group also recommended the development of training curricula and continuing education for all professionals who work with children and parents during the dissolution of a marriage. These professionals include judges, attorneys, courthouse facilitators, guardians ad litem, parenting evaluators, parenting class instructors, mediators and evaluators (Washington State, 2000).

6.1.4 California

The California Family Code establishes the state's policy to assure that the health, safety and welfare of children must be the court's primary concern in determining the best interests of children when making orders regarding the physical or legal custody or visitation of children. It finds that child abuse or domestic violence in a household where a child resides is detrimental to the child. And it is the public policy of the state to assure that children have frequent and continuing contact with both parents after the parents have separated or the marriage is dissolved, except where it would not be in the best interest of the child (Family Code, s. 3020).

The court may order supervised visitation or limit a parent's custody or visitation if the court finds substantial evidence that the parent, with intent to interfere with the other parent's lawful contact with the child, made a report of sexual abuse that he or she knew was false at the time it was made (Family Code, s. 3027.5).

No person is to be granted physical or legal custody of, or unsupervised visitation with, a child if the person is required to be registered as a sex offender under the California Penal Code, among other offences, where the victim was a minor. Whenever custody or visitation is granted to a parent in a case in which domestic violence is alleged and a protective order or other restraining order has been issued, the custody or visitation order shall specify the time, day, place and manner of transfer of the child for custody or visitation to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members (Family Code, ss. 3030-3031).

Custody should be granted, in part, in the following order of preference according to the best interest of the child: to both parents jointly, or to either parent. In making an order granting custody to either parent, the court must consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. No presumption is created in favour of joint physical custody, joint legal custody or sole custody. The court and the family are allowed the widest discretion to choose a parenting plan that is in the best interest of the child (Family Code, s. 3040).

If the court finds that a party seeking custody of a child has perpetrated domestic violence against the other parent, the child, or the child's siblings within the previous five years, there is a rebuttable presumption that an award of custody of any kind to that party is detrimental to the best interest of the child. In determining if this presumption is overcome, the court must consider several factors, including whether the perpetrator has successfully completed a parenting class or a program of alcohol or drug abuse counselling, if considered to be appropriate by the court (Family Code, s. 3044).

If the court determines that it would be in the best interests of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding. If court-appointed counsel represents a child, the court must consider any statement of issues and contentions of the child's counsel at every hearing where the court makes a judicial determination of custody and visitation (Family Code, ss. 3150-3151).

The court must grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. Where visitation is ordered in a case when domestic violence is alleged or a restraining order has been issued, the visitation order must specify the time, day, place and manner of transfer of the child, so as to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. If a protective order under Section 6218 has been directed to a parent, the court must consider whether it is in the best interests of the child to limit the parent's visitation to situations where a specified third party is present or requires that the visitation to be denied (Family Code, s. 3100).

In any contested proceeding involving child custody or visitation rights, the court may appoint an evaluator to conduct a child custody evaluation, in cases when the court determines that it is in the best interest of the child to do so. A court-ordered child custody evaluator must have completed domestic violence training as set out in the statute and additional training as set out in a rule of court (Family Code, ss. 3110, 3111). Rule 1257.7 sets out the training standards for domestic violence situations. These standards include twelve hours of in-person classroom instruction in matters such as the appropriate structuring of the child custody evaluation process (including maximizing safety for clients, evaluators and court personnel), maintaining objectivity and controlling for bias, and providing for separate sessions at separate times (as set out in Family Code s. 3113). Instruction must also be given on the unique issues in family and psychological assessment in domestic violence cases, such as the effects of exposure to domestic violence and psychological trauma on children, the nature and extent of domestic violence, the influence of alcohol and drug abuse on the incidence of domestic violence, and understanding the dynamics of high-conflict relationships and abuser/victim relationships (California Rules of Court, Rule 1257.7).[6]

Also, in any pleading when custody and visitation are contested, the court must set the contested issues for mediation. Domestic violence cases are handled in accordance with a written protocol approved by the Judicial Council (Family Code, s. 3170). A rule of court sets out the standards of practice for court-connected child custody mediation services. A mediator's duties include using reasonable efforts to facilitate the family's transition and reduce acrimony by helping the parties improve their communication skills; focussing on the child's needs and areas of stability; developing a comprehensive parenting agreement that addresses each child's current and future developmental needs; and controlling for potential power imbalances between the parties during mediation. A mediator is also required to complete a minimum of 40 hours of custody and visitation mediation training within his or her first six months of employment as a court-connected mediator. Ethical standards are also set out. For example, these mediators must meet the standards of the Code of Ethics for the Court Employees of California; they must maintain objectivity, provide and gather balanced information for both parties and control for bias; and they must operate within the limits of their training and experience and disclose any limitations or bias that would affect their ability to conduct the mediation.[7]

It should also be noted that Janet Johnston, an expert in high-conflict divorce cases, has proposed guidelines for custody and visitation for cases with domestic violence in California. These guidelines have been incorporated into Idaho's Protocol for high-conflict families (Johnston, 1993). They are set out in this paper's later discussion of "Options for Consideration."

6.1.5 Parent Coordinators and Related Models

Johnston and Roseby (1997: 243-244) describe the "parent coordinator model" as follows:

This approach provides highly conflicted families with an appointed co-parenting coordinator to help the parents make ongoing decisions about their children over the long term.... This new kind of professional role has been developing in a number of jurisdictions across the United States and is variously named: special master (in California), wiseperson (in New Mexico), custody commissioner (in Hawaii), and co-parenting counselor or med-arb (in Colorado). The role of the guardian ad litem is being expanded to include this function in some places. Either a mental health professional experienced with custody matters or a well seasoned family law attorney may be used as a co-parenting arbitrator. The common distinguishing feature of this new species is that the co-parenting coordinator is usually, but not always, given some kind of arbitration powers by stipulation of the parties or by court order. In general, this is not a confidential service, and the appointed person may need to report to the court if his or her arbitrated decision is challenged in court.

There are two co-parenting arbitration models. In the first model, the co-parenting arbitrator is called on to arbitrate only when the parents cannot settle a specific dispute. The arbitrator does not perform counselling or therapeutic functions for the family. In the second model, co-parenting coordinators act as the parenting counsellor, mediator or child therapist in an ongoing way, and exercise their right to arbitrate only when the parents fail to agree on a specific matter. Both models, however, share common elements. To institute a co-parenting arbitrator, an explicit written contract with the parents, their attorneys, and other relevant persons is drawn up, signed by the parties and filed with the court. The contract should include how the arbitrator is to be chosen or appointed and how the arbitrator is to be terminated; the specific domains in which the arbitrator is to make decisions and the limits of his or her powers; the methods of conflict resolution the arbitrator may use; the procedure for bringing an issue before the arbitrator for a decision; the permissible lines of communication by which the arbitrator may gather information; who pays for the services of the arbitrator and when and how; how and when the arbitrator's decision is to be made into a court order; and the procedure for challenging the arbitrated decision in court (Johnston and Roseby, 1997: 244-245).

As the Oregon briefing paper, entitled Interventions for High-Conflict Families: A National Perspective, explains:

Typically, the parent coordinator is a neutral third party, either a therapist, mediator, or attorney, who assists the parties in creating, maintaining, modifying and monitoring compliance with a parenting plan. The process is child-centered and typically not confidential; i.e. the parent may make recommendations to the court and testify. The parent coordinator may also perform an investigator function, meeting with therapists, schools, family members and others in order to understand the family's dynamics and points of impasse (Sydlik and Phalan, 1999: 18-19).

There is not yet a statutory framework for the parenting coordinator model in any state. Colorado appeared to be the only state that attempted to legislate this position, but the proposed legislation was withdrawn because of opposition by the state bar that too much authority was being given without adequate judicial review. In the proposed legislation, the parent coordinator role would have included developing the parenting time/shared visitation agreement, not just implementing it. The proposed legislation also would have allowed the court to appoint a parenting coordinator over the parties' objections if the court found that "the parenting issues in the case are complicated, that the parties demonstrate a pattern of high conflict, or that such other conditions exist to warrant the appointment" (Sydlik and Phalan, 1999: 19-20).

In Arizona, the Family Court Advisor (FCA) performs a function similar to that of the parent coordinator. Typically, the FCAs are mental health clinicians. Their fees are paid by the parties and range from $75 to $200 (U.S.) per hour. Judges rely heavily on the ability to refer parents with unresolved issues to the FCAs. The characteristics of the FCA role include:

  • Appointed by court upon motion after finding that the case involves complex family dynamics problems requiring "speedy resolution" and involving "mental health and economic issues" crucial to the child's best interests.
  • Typically appointed for a two-year period.
  • Ordered to make recommendations to the court about custody, visitation or access, and to make recommendations regarding daily routine, daycare/babysitting, transportation, medical/psychological care, visitation exchange procedures, activities of the child, vacation/holiday scheduling, schooling, discipline and other parenting type issues. However, the FCA cannot modify legal custody, make relocation orders, or substantially alter existing access schedules.
  • The FCA recommendation becomes a court order unless parties object within 20 days; if there is an objection, the matter is set for a hearing.
  • The FCA may use any dispute resolution method, e.g. mediation or arbitration.
  • The FCA may interview and require participation of any person in the process.
  • The FCA may require drug testing.
  • In emergency situations, the FCA may immediately communicate with the court about his or her recommendations, and the court will enter an interim order.
  • There is no confidentiality, i.e. the FCA may be required to testify.
  • The FCA cannot communicate ex parte with attorneys except about scheduling matters.
  • The FCA has quasi-judicial immunity.
  • Fees are paid by the parties, according to the responsibility assigned (Sydlik and Phalan, 1999: 20-21).

6.1.6 Court-Connected Enforcement Models

Arizona has this kind of model. Under Arizona law, each county treasurer must establish an expedited child support and visitation fund consisting of monies received from court filing fees. The presiding judge of the Superior Court must use these fund monies to establish, maintain and enhance programs designed to expedite the processing of petitions filed pursuant to section 25–326 and to establish, enforce and modify court orders involving children. Under section 25-326, if a party fails to comply with a provision of a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended, but the other party may petition or request the court to grant an appropriate order (Arizona Revised Statutes, Title 25-412, Expedited child support and visitation fund). In Mariposa County, Arizona, when support orders are violated a parent may file a petition with the Expedited Support Enforcement Office. Within 15-45 days of filing, there is an administrative conference with a Support Enforcement Officer (SEO), who makes recommendations to the court and who may be compelled to testify. If court-ordered visitation/access orders are violated, a parent may file a petition for enforcement with the Expedited Visitation Services Office. An Extended Visitation Services (EVS) Officer sets up a meeting with both sides, called a "para-judicial conference." The EVS officer makes recommendations to the court within 48 hours. The court enters an interim order. Objections are required within 25 days. A caseworker may monitor compliance for six months. Non-court services that may be recommended by an EVS officer include exchange supervision, physical supervision, therapeutic supervision (for parental alienation reunification cases) and counselling (Sydlik and Phalan, 1999: 23).

In Michigan, Friend of the Court Offices were created throughout the state in 1919. Michigan enacted legislation to empower the Friend of the Court with authority to ensure compliance with support and parenting time orders. In a dispute involving the parenting time of a minor child, the Friend of the Court must act in one or all of three ways. First, he or she can apply a make-up time policy if a non-custodial parent is wrongfully denied parenting time by the custodial parent. Second, if the make-up parenting time policy is ineffective, the Friend of the Court can begin civil contempt proceedings, as a result of which the court, on finding that the parenting time order has been violated, must do one of the following: modify the existing order; order make-up parenting time; order a fine of not more than $100; commit the parent to the county jail for 45 days for the first offence and 90 days for subsequent offences; and suspend an occupational licence, driver's licence or recreational or sporting licence. Third, the Friend of the Court may petition the court for a modification of existing parenting time, unless contrary to the best interest of the child (Sydlik and Phalan, 1999: 23-24; Michigan Compiled Laws, Support and Parenting Time Enforcement Act, ss. 552.641-552.642).

Another court-connected enforcement model is the special master. The Oregon Briefing Paper states: "The special master is a more established form of neutral, third party decision maker employed to assist high conflict cases in a number of jurisdictions throughout the [United States]." The Briefing Paper adds:

Various forms of the special master role have been implemented in different jurisdictions, with some of them being more formal, expensive or time-consuming than others. The special master can function as an investigator and fact-finder on particular issues for the court, with his/her duties limited to making recommendations for the court.

The special master can also function as a case manager, performing many of the same functions as the parent coordinator position ... He/she assists the parties in creating and maintaining a parenting time plan, helping to tease out the day-to-day rights and responsibilities of each parent. The special master can also obtain releases from the parents to enable discussion with the therapists, school officials, health practitioners and family members. As a case manager, the special master may continue to have a longer term relationship with the family to supervise and monitor issues as they arise.

Sometimes a special master functions in a more formal manner with powers akin to those of an arbitrator. While the special master may initially make some dispute resolution attempts, if the parties cannot agree, the special master enters a binding decision which is subject to review only for the abuse of discretion or for excessive use of powers, never simply because a parent dislikes the outcome. The procedure in such cases may have legal and procedural formalities, such as hearings, introduction of evidence, appearance of witnesses, making findings of fact and rendering a record (Sydlik and Phalan, 1999: 24–25).

In California, two kinds of statutory referees exist. Section 638(1) of the California Civil Code provides, in part, that a reference may be ordered on the agreement of the parties to try "any or all of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision thereon" (California Code of Civil Procedure, ss. 638(1)). This is a general reference. The referee or master in this case is empowered to make a conclusive determination without further action by the court. Alternatively, a reference may be heard in part when the parties agree "to ascertain a fact necessary to enable the court to determine an action or proceeding" (California Code of Civil Procedure, ss. 638(2)). This is a special reference. The special master here makes advisory findings that do not become binding unless adopted by the court after an independent consideration. However, the recommendations are entitled to great weight. A court may not order parents to a special master over one party's objections when one party objects and the reference is a general one, because it is an unconstitutional delegation of judicial power. However, if the reference is a special one, limited strictly to factual issues and the making of recommendations, the order may be entered even over a party's objection (Sydlik and Phalan, 1999: 25; Ruisi v.Theriot (1997), 53 Cal. App. 4th 1197).

Oregon also has a statutory provision that authorizes an order of reference where the parties consent. However, where the parties do not consent, statutory authorization is restricted. In the absence of an agreement between the parties, a reference can only be made upon a showing that some exceptional circumstances require it (Oregon Revised Code of Procedure, s. 65).

6.1.7 Guardians Ad Litem

The Oregon Briefing Paper on Interventions in High-Conflict Families points out that guardians ad litem are increasingly being used in many states (Sydlik and Phalan, 1999: 26).

For example, the State of Washington provides, in domestic matters, that a court may appoint a guardian ad litem to represent the interests of a minor or dependent child when the court believes the appointment of a guardian ad litem is necessary to protect the best interests of the child in any family court proceeding. Family court services professionals may recommend to the court whether a guardian ad litem should be appointed.

Unless otherwise ordered, the guardian ad litem's role is to investigate and report factual information to the court concerning parenting arrangements for the child and to represent the child's best interests. Guardians ad litem may make recommendations based upon an independent investigation regarding the best interests of the child, which the court may consider and weigh in conjunction with the recommendations of all of the parties. If a child expresses a preference regarding the parenting plan, the guardian ad litem must report the preferences to the court, together with the facts relative to whether any preferences are being expressed voluntarily and the degree of the child's understanding. The court may require the guardian ad litem to provide periodic reports to the parties regarding the status of his or her investigation. The guardian ad litem must file his or her report at least 60 days prior to trial.

Generally, all guardians ad litem must comply with training requirements established by law. The administrator of the courts is required to develop a statewide curriculum for persons who act as guardians ad litem. The curriculum includes sections on child development, child sexual abuse, child physical abuse, child neglect, clinical and forensic investigative and interviewing techniques, family reconciliation and mediation services, and relevant statutory and legal requirements.

All information, records and reports obtained or created by a guardian ad litem are discoverable pursuant to statute and court rule. The guardian ad litem must not release private or confidential information to any nonparty except pursuant to a court order signed by a judge. The guardian ad litem may share private or confidential information with experts or staff he or she has retained to perform the duties of guardian ad litem. Any expert or staff retained is subject to the confidentiality rules governing the guardian ad litem (Revised Code of Washington, ss. 26.12.175, 26.12.177, 2.56.030(15), 26.12.180; Lidman et al., 1998).

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