The dialogue surrounding alienation has caught the attention of not only the family law community, but also the public at large. Amidst the flurry of attention that it has garnered, we need to reflect on the reality that alienation does not occur in a vacuum. It exists as one of the many problems that lawyers, judges and other helping professionals face when confronted with a high-conflict family.
Although many issues surrounding alienation are hotly contested, it almost always occurs in the context of high-conflict families following a separation. High-conflict families exist and interact in a state of perpetual dysfunction and disorganization, which leads to further emotional and psychological strain.
Alienation or not, high-conflict families are not able to manage their interactions and communication at any level. They require, sometimes on a daily basis, the assistance and intervention of lawyers, judges, doctors, social workers and other helping professionals. They fight about travel, schooling, tutoring, soccer and music.
Tragically, in spite of the significant efforts made to identify and address the causes of conflict in post-separation families, we are confronted with not a decrease but an increase in high-conflict cases, including more alienating parents and alienated children. One of the major problems we face in dealing with high-conflict families arises from the major shift over the last ten years in our attitudes about identifiers and basic concepts of custody and access.
Structured definitions have become passé in the past decade, joint custody or label-free settlements have been considered by many to be the norm and requests for sole custody have become almost politically incorrect. This shift in attitudes is a result of a variety of social and political developments that have fundamentally altered the language of and attitudes about post-separation parenting roles across Canada.
In 1998, the Joint Senate House of Commons Committee on Custody and Access released its report, “For the Sake of the Children.” The report was the result of a political compromise reached when the federal child support guidelines were in the Senate and Senator Ann Cools imposed her fathers’ rights agenda on the process. The report suggested an increased emphasis on the maximum contact principle, a movement away from the language of “custody and access” and a presumption of joint custody in every case.
Although not adopted as law, the report and the fathers’ rights agenda have been highly influential on the public, legal and judicial mindset. There has been an increased preoccupation in custody and access litigation with elevating the maximum contact principle through the language of shared parenting.
Clients often feel pressured by mediators, mental health professionals, judges or their own counsel to agree to joint custody. “Just give it to him and the conflict will end;” “Why would you object?” and “Nothing will change anyhow; you will still make all the decisions in a practical sense” are the common arguments. I have said these things myself. When respected authorities put this kind of pressure on individuals who are already quaking under the emotional and financial costs of conflict, the result is pretty much assured: joint custody or label-free “deals.”
Sometimes spouses agree to these arrangements because they hope that conflict will abate if the other spouse’s role is ratified. Sometimes they believe that there will be few changes to the reality of the parenting roles and that a little joint custody label will not change that. In high-conflict cases, another compromise has been joint custody with the appointment of an arbitrator or parenting coordinator to assist with decisions that cannot be made jointly. Unfortunately, these rationales and compromises are almost always flawed.
Australia adopted radical new custody and access legislation in 2006 that established mandatory mediation of all custody cases and imposed a presumption of joint custody. The result has been increased conflict and custody litigation. This lesson translates to the issue of labels. Joint custody mixed with arbitration/parenting coordination can often create a forum for increased or continuing conflict by allowing access to a person who can be called, day or night, to referee issues that might actually not arise, or might get resolved naturally, if that opportunity for accessible conflict was not there.
Label-free arrangements can also lead to ongoing conflict and difficulty with third parties. Teachers, doctors and immigration officials require more than the language of “shared residency” or “parenting time.” In practice, many require opinion letters about what the terms mean, or refuse to take direction from one parent because they are unsure. In abduction and jurisdictional issues, the absence of custody can be devastating to an enforcement or Hague Convention proceeding. Police enforcement can also be very challenging without labels that everyone understands.
Sometimes the label the parties have put on their arrangements also matters to judges. In mobility cases, we are instructed by the Supreme Court to give the views of the custodial parent “great weight.” What is a court to make of a label-free parent, or the one who acts as a primary or sole parent but carries the label of joint? Or, when joint decision-making fails or parties become exhausted by parenting coordination, a material change is required and the judge wonders why he or she should change the former agreement, which the parties must have thought was in the best interests of their children at the time they settled.
While it is true that we all had good reasons and lofty ideas when we moved away from structured concepts, we need to re-examine these ideas in the context of high conflict cases. Parents and children who are embroiled in conflict need the certainty and stability that traditional concepts provide. Labels matter.
Martha McCarthy is a certified specialist in family law and the recipient of the Ontario Bar Association 2007 Award of Excellence in Family Law. She operates a boutique family law firm located in downtown Toronto.
My letter to the editor of the magazine: