Moral Distress and High Conflict
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July 2004 |
There are many ethical issues inherent in family law, some of which glide on the surface of our consciousness and others which lay beneath it. Family lawyers and mediators face difficult questions and one that should be added is the question of how ethically literate are we really?
Access Ethics:
We have ethical precepts. One we hold close as professionals and that is well entrenched in the legislation is that: the denial of access is wrong.
That it is wrong for one parent to stand in the way of or thwart, parent-child access is a moral value. We judge custodial parents or guardians as acting wrongly where they fail to ensure that there is reasonable access at reasonable times. This moral judgement is supported by courts across the land. Judges do not look favourably upon custodial parents who deny access to the other parent.
The literature addressing access denial and interference of access focuses on serious problems like parental alienation syndrome (Gardner R) and children who are caught in the middle (see Garity and Baris) of adult conflict.
There is an under recognized problem in Canada with non-custodial fathers failing to exercise their access. Indeed, in one Canadian Department of Justice Report this was described as being more prevalent than the problem of access withheld by mothers. This too is an ethical problem, but one that has received very little attention. Proximate or actual abandonment of a child by a parent is not, most of us would agree, morally right. This is rarely addressed in the literature. Studies show that the much less common (but much more talked about) withholding of access by mothers is generally due to maternal concerns about child safety and wellbeing. Child wellbeing and safety are ethical considerations. We don’t see very much about the reasons for denial in the literature either. We ought to, primarily because it touches upon the ethical issue of moral accountability when something at access goes terribly wrong.
Nomenclature and Ethics:
It has come to our attention as divorce professionals that the core family law word “access” is problematic, and that its use offers many ethical issues for consideration. This is not a discussion about mere semantics. Words carry a great deal of weight and meaning and words are powerful. A word can, in the abstract, define a relationship in the mind of listeners.
It had been suggested that the terms custody and access imply that children are chattels owned by their parents. This is ethically problematic from a children’s rights standpoint and it’s ethically problematic from a human rights stand point.
The word access also implies that “the access parent” has somehow “lost” their child. The notion of access is akin to the property law term easement. It is a lesser property interest of less value than full ownership. It is a smaller right to use. Some parents feel they are only renting their children or worse still borrowing them. Canada’s Bill C-22 proposed that the words “parental responsibility” be used to replace the terms custody and access. The jury is still out on whether this will be a meaningful change or not. Status of Women’s Groups across Canada have been studying the ethical and legal implications of this possible change for some time.
Then too there is that other term, custody battle. This is, in effect, an ownership war. Custody battle is a term that one hopes will vanish from the family law lexicon one day.
Either way, we know that the use of these terms is antithetical to the spirit of meaningful post separation dispute resolution because the terms custody and access themselves set parents up for conflict. This is an ethical problem for the divorce professions, which profess to be resolving the biggest dispute of a life time.
Substantive Ethical Issues at Access:
There are various substantive problems that present after separation that carry ethical implications. Many of these are viewed as being primarily legal problems requiring legal solutions. The reason these legal problems are so very thorny, is because they are not strictly legal problems to begin with. Legislating morality has always been problematic, and it is even more so in family law where the ethical issues are often buried deep beneath the surface, labelled as post-divorce “conflict”.
For example, there is the issue of mobility. If one parent wants to move to New Zealand to study orthodontics because she did not get into a program in North America, and she wants to take the child with them and remove the child from the other parent there is an ethical issue that must be confronted. Father in this case opposed the move. There would be no question that he felt it was morally wrong for his child to be taken away from him for such a lengthy period.
Court cases focus on rights and entitlements of parents in mobility cases. In this Canadian case the court also did an extensive best interests test and permitted the custodial parent to take the child across the world. Access was to be exercised by phone and over vacations. Legally this case was resolved, but the ultimate issue hasn’t been; whether it was right or wrong to remove the child from the jurisdiction and from the other parent remains an ethical debate for many. This is the question that lay beneath the dispute.
The issue of religious differences between parents also offers examples of ethical conflict, especially around their impact on important medical decisions and the care of sick children. For example there are the cases involving Jehovah Witnesses where one parent refuses a blood transfusion for a dying child on religious grounds, while the other parent supports a blood transfusion for their child. Often in these cases Child Welfare agencies step in and force the moral issue.
There are also ethical issues that revolve around spousal support. Husband leaves wife after twenty years of marriage and wife signs a separation agreement agreeing to two years of spousal support. She has done this imagining it to be enough to update her credentials and return to the labour force, but then she develops breast cancer. Her husband is legally correct in opposing her claim to continue spousal support during her chemotherapy. Is he ethically right though? What if this wife was abused for ten of those twenty years and we find out that breast cancer is stress related? What if the cancer is terminal? What if husband started having an affair after she was diagnosed with breast cancer and then left her, does that make a difference and should it?
It is the family court which decides the ethical apart-family problem, as a legal issue to be determined on legal grounds. It is in the family court that panoply of moral dilemmas that masquerade as simple conflict are fought out. Unlike in the ethical dilemma presented in the novel Sophie’s Choice, the ethical dilemmas of family law/mediation are not constructed from bad but rather from good intentions (and we know where that road leads!) and this fact makes them even trickier.
Moral Distress:
No matter what we call it, whether it be access, time sharing, parental responsibility, spending time with or shared parenting, we are in fact talking about supporting a relationship and not about time. The label “access” clouds this fact.
An important ethical concept in nursing practice is “moral distress”. Moral distress is what a nurse experiences when s/he is given a medical order for a patient that s/he must carry out, but that s/he sees is clearly not in the patient’s best interests.
Nurses carry out physician instructions as required even though they may disagree with them, even though they feel certain that their patient will be harmed by the action. The nurse who carries out the order is then forced to watch the patient suffer under his or her care if she was right and the treatment was wrongly prescribed. There are many internal conflicts that take place, namely that nurses ought not be causing harm, that they are there to heal that they are responsible for a patients suffering, and there is guilt associated with the fact that they knew better, but did it any way. This leads to moral distress.
The concept of moral distress can be transplanted from the nursing profession into the family law and mediation areas of custody and access. It describes well the ethical issue inherent in the Gordian Knot of sharing time with a parent who in some way or another lacks full parenting capacity, the situation where there is access denial on either side, where a crisis has occurred just after the papers are signed and so on.
While nurses deal at arm’s length with patients (they are not intimates as are parent and children), this is not the case for our clients. For this reason, the moral distress that appears at access or in other areas at separation is all the more distressing.
In both cases there is a trust relationship where the patient/child relied upon the party to look out for their best interests. This special trust carries with it a moral obligation, and clients who are forced to act against their sense of morality may discover themselves in moral distress. Where parents have not succeeded in getting court orders for supervised access in what appear to the courts to be borderline cases, where the access parent has undefined or undiagnosed characterological problems that defy classification or diagnosis, the stronger parent suffers from moral distress each time they pass their child over into the hands of the other parent. They also suffer moral distress again when the child returns to them, especially when their child returns depressed or hurt or neglected. Anecdotal evidence supports this view.
When a family lawyer or mediator is re-negotiating a residential schedule for parties who have for example, two children who have ADHD and who have been entrenched in battles ever since the implementation of the plan, they need to look closely at what is really going on. The ADHD did not come from nowhere. Chances are one of the parents has it, or something similar to it and that this is impacting on parenting and driving conflict. Having a child forgotten at various places by a parent with (in this example) ADHD is not conducive to post-separation harmony. The law appears as a callous passer-by when it fails to stop, look and address these kinds of moral injuries for parties at and after separation.
The setting out of access by lawyers and mediators was intended to be the end of conflict, but in these kinds of cases it is just the beginning. The law has set out access, but the parent keeps leaving and forgetting the child various places during access. Leaving access undefined and vague in cases like the example above is ethically problematic for everyone involved, including the professionals.
The “shoulds” fail. Perhaps this family should have had a custody access assessment. They may have. Or maybe they could not afford one. The affected parent should have help or support. But refuses, or can’t afford it. In these ways, a variety of problems undermine safe successful time sharing, and leave the parents looking simply conflicted when in fact they are not, they are struggling.
Non-affected parents in these situations grieve their inability to act on their own moral evaluation (to protect their children in a situation they perceive as being risky or in some cases overtly harmful) whether or not they are engaged in protracted litigation. All of our clients have a moral life that they are living through.
Parents in conflict are currently viewed as having dubious or suspect motives. Often they are labelled as being in a “high conflict separation” (the kiss of death), and their children are seen to be dangerously caught in the middle, something the parent can appreciate is a place they do not wish their children to be.
Most parents want what is best for their children, and I believe they know what is best for their children too. It is this that professionals need to keep foremost in mind when faced with parties complaining about problems with the other parent.
Ethics in Separation:
There are no extensive studies on the impact on the mental or physical health of clients who are forced to act against their ethical sensibilities (as opposed to mere preferences) in the more difficult custody and access cases.
Our neglect of the subject of ethics in work with clients in issues revolving around custody and access is part of the reason why we have failed to successfully tackle so many of the underlying issues inherent in many of the mid to high conflict cases.
Viewing client dilemmas as mere legal problems prevents their being solved at the level where conflict is often generated, in the client’s moral mind (or heart).
We demean our client and the opposing party’s client when we look at them and attempt to assess the real reasons for their emotional distress around access. We ask ourselves if they have ‘moved on’ yet, and if not why not, we ask ourselves whether these parents are insecure, conflicted, lonely or simply jealous of a new partner. We try to second guess them. We tend to view separated parents and their access complaints with the view that there must be an ulterior motive somewhere if only we can find it (to punish the other parent, to remain engaged with the ex-partner, to exert control) and in so doing, we strip our clients of their altruism, of their good will and their good faith and we forget the possibility that this client may have already walked the moral high road and suffered because of it. Not all high conflict separating parties get value from conflict; I also don’t believe they can escape it unless the real causes of it are addressed.
Schneeberger v. Schneeberger [1]
The Canadian case Schneeberger v. Schneeberger illustrates ethical issues in the family law context.
Dr. Schneeberger was a South African physician working in Canada in the 1990’s. The doctor married a Canadian woman toward whom he was violent and threatening throughout the course of their difficult marriage. The parties had two daughters.
When the girls were toddlers, their father was charged with two counts of sexual assault, one an assault of a thirteen year old step-daughter, the other, the sexual assault of a drugged female patient.
Dr. Shneeberger was further charged with obstruction of justice. He had inserted tubes of a male patients’ blood into his arm in order to thwart DNA test results regarding the rape charges. This physician was subsequently investigated also for immigration fraud.
One might think of this man as having a personality disorder or some other kind of characterological problem like sociopathy. Certainly nothing that presented as significant at the time that the family court ordered access. [2]
This access order (from another jurisdiction) was still standing when Dr. Schneebereger was sentenced to prison. Family court Judge Justice James Foster ordered the children’s mother, Lisa (now Dilman) to take her then 5 and 6 year old daughters to the prison where their father was incarcerated for access. Prison access is not uncommon.
Ms. Dilman initially refused to carry out the requirements of the court order, but was taken to court and found in contempt and fined $2000. When she finally took her daughters to prison for access, there were protestors outside the gates and a social worker present who intervened in her crossing the threshold, saying that the children were becoming distressed. In the end, Dr. Schneebereger waived the access.
These girls had spent very little of their early lives with their father, and the mother felt that the risk of harm to them outweighed their need to see him.
This weighing of benefit versus harm is part of what it is to be a parent. It is an inherently parental exercise, a moral exercise that is at the heart of raising a child.
Weighing (in this case the best interests test) was also what the Court undertook. But the court came up with a different conclusion than the parent. The mother in turn assessed according to her own values whether the courts decision was ethically justified.
What the law found and what mother felt were in direct conflict. In this case the media and the community jumped on board with what appeared to be moral outrage. They supported the mother.
“Lisa’s Law” evolved as Private Members Bill C-400, a bill to amend s.16 of the Divorce Act. Lisa’s Law was proposed as section 9.1 to the Act which would suspend any right of access by a non-custodial parent while that parent is serving time where the child in question was a victim of the crime or where the crime was a sexual offence and where the custodial parents did not agree to the access. Lisa’s Law appears to be an ethically driven idea.
When finally Dr. Schneeberger was released, it was with a no contact order with respect to the mother and his children and with the requirement that he report all contacts with women to the police.
The defendant was perceived by the criminal justice system as a dangerous past offender, but up until the mother’s refusal to permit access, he was legally someone who should be exercising access to his children according to the family justice system.
The Canadian Bar Association opposed Lisa’s Law on several grounds. In a letter to the Standing Committee on Justice and Human Rights the CBA concluded that the proposed law was well intentioned but misguided, and noted that this provision would conflict with the Divorce Act provision encouraging regular contact between children and their parents consistent with the children’s best interests. The CBA is correct in that the law must support parent child relationships.
We have yet to take this one step further and require (as some have suggested) that courts be required to monitor the protection of the best interests of the same children whom they order into the care of and contact with an abusive or significantly dysfunctional parent. I argue that this is an ethical imperative.
Functionalism and Ethical Issues for Children at Access:
Children of divorce are directed by support professionals, mediators and lawyers to adjust their behaviour in a variety of ways to support the new way of life post intact-family.
For example, children are advised not to “report back on” what goes on in the other parent’s house. Parents are told firmly not to inquire as to what goes on in the other parents home (this is presented as a boundary violation).This is intended to be supportive of creating a new two-home status quo for the apart- family.
Family Law Injustice:
The client in the office is an ex-prostitute and drug user. She has come to the office because three of her children have been apprehended and placed into care. She wants them back. The children were placed into care in part because her boyfriend, also her pimp and a violent gang member who spends most of his time incarcerated, is seen to be a threat to her and to them. “But” she cries bitterly “My girlfriends’ kids are all being diddled at access all the time, and they get to keep their kids!”
It is plain that the client perceives an ethical injustice in her case. This upsets her greatly. In fact, the injustice seems even bigger for her than the fact that she has not seen her children for several days. Her point is that her children are not being sexually abused and therefore should be returned to her care. Presumably, her friend’s children who are being interfered with sexually do report back, for how else could this client know this. This client is morally outraged, and this outrage will be her modus operandi, at least in part. Practitioners in the area of poverty law see this a lot.
Imagine giving this same advice not to report back to a child in an intact family. We encourage reporting in intact families because it is the safe thing to do. Asking children questions and listening to the answers are hallmarks of good parenting.
This is just one of the many ways that the children of divorce are placed at risk by the view that parents must give up control over their children as a concomitant of successful separation. That they must make this adjustment quickly and without ambivalence is an admonition we give clients for their apparent well being.
This piece of advice is also handed out to children in divorce workshops and in books for children on divorce. This stance is a by-product of “functionalism”. There is a bias in the literature on optimal post-divorce functioning towards functional apart-families, as opposed to dysfunctional apart families. Many separating families cannot operate based on what works well with higher functioning parties.
The admonishing “no reporting back” creates ethical dilemmas for both parents and children. Properly attached children need to share and confide in their primary attachment figure. This is ever more true where there is time sharing with a parent who has significant characterological problems, mental illness, an impairing physical ailment, sociopathy, personality disorder or other cognitive problems such as a neurological dysfunction or injury. June and Ward Cleaver might have managed a separation with Wally and the Beav with a “no reporting” rule, but the Cleaver’s are not representative of the majority of clients we ask this of.
Directing children not to report is, under these circumstances, the same thing as leaving them to fend for themselves. Where mom is an alcoholic, and the parties are separated, the child needs, for safety reasons, to report. Telling the child not to is ethically questionable and furthermore presents an ethical dilemma of access for children and it presents ethical dilemmas of access for parents also, who, once told not to ask questions about what goes on at the other parent’s house recognize that gaps exist in their knowledge about their child’s life and feel ethically compromised.
Divorce Complex or Ethical Issue?
One kind of so-called divorce pathology seen to exist by divorce professionals where there is access denial or complaints by mothers in particular around the quality of access for their child, is that mother cannot see herself as a separate being from her children. She is seen to be suffering from a neurosis or poorly formed sense of self. Another kind of divorce pathology we feel we see is that father/mother wants to punish the other parent by taking away the relationship with the children.
Sometimes, when we see separating parties first with a million savage words on their lips, we fail to see the underlying issues that prompt their (I argue) legitimate concerns. We do a disservice to clients when we view them as suffering from grossly overly simplified divorce complexes.
We are in our infancy in what we know and understand about the complexities of family breakdown in the West, and in our infancy in the study of the psychology of custody and access problems. It is easier for us to throw these kinds of problems back to the client; otherwise we’d have to shoulder some responsibility for them.
Not all mothers who wish for better quality of access or less access or temporarily supervised access for their children are enmeshed with them. Yet we jump to pathologize mothers who complain about access and who want to change it.
Some parents do use their children as pawns and as weapons against former partners in an effort to hurt them for past losses. Or worse, they attempt to alienate children completely from their other parent. This ought to be seen as a crime (it is a moral outrage) and not merely a syndrome (Gardner R).
This is not nearly as common as are the much more frequent problems encountered by separated families where there is alcoholism, incest, drug use, mental illness, neurological problems and so on, and where the desire to address problems with visitation while litigious are often legitimate. Labelling clients who are struggling with refractory conflict only serves to damage the credibility of the helping professions (which I believe family law is one of).
Culture, Ethics and Conflict:
As professionals we also need to become aware that much of what we see in terms of conflict is culturally determined and that this is true with respect to what the client experiences as conflict as well.
In Japan, “Mother and Child” is encompassed by one word, (Oyako). In fact, in Japan the mother-child relationship is the most intimate relationship a child will ever have, more intimate than any romantic love relationship the child may have later on in life. Does this mean that all Japanese mothers are enmeshed? [3]I mention Japanese parenting norms simply to point out that the parent-child relationship is a complex one, and one which varies greatly from culture to culture.
In our courts and offices we are dealing with clients from a variety of cultures and backgrounds and this makes for added layers of ethical conflict at the time of family breakdown. [4] While this is the topic of another paper, it forms part of this discussion.
Ethical Issues for Parents:
Clients leave marriages for many reasons: they leave because of significant emotional and physical trauma, they leave to flee past trouble relating to conduct of the other parent (violence, substance abuse) and in his or her partners extended family, they leave or are left due to a failure of commitment, because of mental illness or other characterological problems in their spouses or in themselves.
Clients flee to escape the pattern of abuse they grew up with, and then married into, they leave because they have changed or rediscovered another or better or different way to live or are left because their ex-partners have.
And there lies the rub.
These are human and moral issues. If court orders a party to send their children back into the “other life” every other weekend, it will not sit well.
For example, your client’s sixth sense may be telling him there is something going on with mother’s new boyfriend and his daughter, and as a parent, your client has a need to be assured this possible ethical issue is or is not in fact a more concrete issue. Unless he is reassured that the situation is safe for his child, he has an ethical problem that will present as conflict. [5]
Unfortunately in the current professional environment, his concern will more likely be interpreted as a desire to violate boundaries in that household. He may also be pathologised as being controlling and over-involved.
Example of an Ethical Dilemma:
An agreement is mediated where there were clauses drawn up stipulating that there be no pornography or cocaine used around the two year old child at access. This clause goes in under a section called parental conduct that ostensibly applies to both parents. One parent is a born again Christian who does not drink or smoke and the other parent has a criminal record and an extensive history of substance abuse and who works in bars. The mother in this case suffers enormously knowing this clause might be disregarded, and so does the mediator seeing this client’s deep concern for her young son.
These parents live in different cities and the mother can not check up on the child’s father’s conduct. The bi-monthly handing over of their child causes her significant moral distress, but she does it consistently.
Her ethical dilemma is that on the one hand she wants this child to have a solid relationship with his father and she plans to support that. On the other hand, she needs to know that the child is safe and her gut tells her the child’s safety is compromised.
For parents not caught in the child welfare net, custody and access can become the forum in which these kinds of ethical dilemmas play out. These parties were referred with the label of “high conflict”. This is not conflict per se, this is ethical dilemma. The label of ethics is not semantic. Once the big issue for the parties was addressed fully (accountability and safety) things calmed right down and there was an agreement.
In the current system, the ethically conflicted parent may not be permitted the luxury of making ethical choices around his or her own children. This is on the one hand intolerable and on the other hand inevitable. The loss of the ability of make an ethical choice for ones child is huge. It simply can’t be ignored.
Example of an Ethical Conflict:
The mother who sends her peanut allergic child off every Wednesday evening to spend time with a father who simply refuses to acknowledge the life threatening food allergy of their child, and who takes no precautions against possible peanut contamination of foods faces an ethical conflict. [6]
The child reports to the mother that the father takes him to Thai restaurants and leaves the doggy bag unmarked in the fridge. Father does not bring the child’s epi-pen with them to the restaurant and the child is forgetful himself. Mother is aware that the father disbelieved the allergy-immunologist when he pronounced the asthmatic peanut allergic child to be “at high risk of anaphylaxis” (fatal allergic reaction). She was there when father said “rubbish” in the doctor’s office.
Maternal/parental instinct [7] tells this mother not to send her child to the father for access (her gut screams “No”) yet, the court tells her she must.
The denial of her parental instinct (her need) to protect her child, who is objectively and not merely subjectively at risk results in moral distress in both mother and child, a kind of ethical crisis caused by the clients need to override their own code of ethical behaviour and pushing the child out into a situation she perceives as unsafe and which is in fact, unsafe.
This woman was dealing with a father on the autistic spectrum who simply did not perceive child risk. Over the long term, I suggest that chronic moral distress leads to ‘moral trauma’ (a word I introduce here to describe a deeper more prolonged kind of moral distress).
If the client in this case fails to comply with the court order for access, even for a period of a few weeks, she may see herself on the receiving end of a contempt motion.
The flip side of this ethical issue is that even though the other parent is compromised in terms of his parenting capacity, there still needs to be a relationship between parent and child and I argue that it ought not be one that is artificially and commercially supported in an access centre.
The access parents in these kinds of cases are not all problematic enough to require that kind or type of supervision, but at the same time, many of these parents lack the parenting capacity required to care for a child on their own over a lengthy period of time. This is an ethical problem for our profession, which has set rigid boiler plate guidelines around what access should look like.
Reasonable access at reasonable times makes no sense when parents present with so many varying neurological and cognitive and behavioural profiles. What is reasonable under one set of parental circumstances may be quite unreasonable under another.
Family practitioners need to begin accommodating parental and child differences at access in a more meaningful way. [8]
One Size Does Not Fit All:
These kinds of cases are the ones that presently fall into the cracks. These are also the cases that get the “grab bag” label of “high conflict”. We must disavow ourselves of the notion that only dysfunctional “still engaged” separated clients are the ones to wind up in high conflict custody and access disputes.
Ethical conflicts at visitation necessarily make for high conflict. Certainly it is difficult to imagine an ethical conflict around children making for a low conflict.
Many parties struggle with concrete but unperceived mental health problems such as shadow syndromes, sub-clinical in nature (for example dysthymia rather than full blown bi-polar disorder), characterological problems (personality disorders), neurological problems (like Asperger’s Syndrome or traits of high functioning autism) or other problems like post traumatic stress disorder or low grade depression, or severe ADHD. These problems affect parenting capacity and show up as a post-separation issue as a result.
In the case of the child reporting back to his mother that he ate Thai food at his father’s house during a parenting visit, this fact causes moral distress to the child also because the child knows the mother will suffer from this dreadful knowledge at his hands. The child knows too that he is tattling on his own father, something which makes him feel conflicted. Furthermore, the child may feel his or her life is being threatened (which in fact, not mere allegation, it is). The child must struggle with the obvious issue of less than optimal parenting in the one parent and he needs to be cognizant of and ensure his own future safety. Self-parenting at access is an ethical issue.
These kinds of situations, not all that rare, present ethical quagmires that we must start looking at more closely. Children should not be caught within these ethical webs. They are not only caught in the middle of their parents’ access disputes, they also are caught in the middle of the ethical issues that arise in relation to their need to pursue a relationship with an important attachment figure under sometimes intolerable circumstances.
In one custody-access case here in Toronto the father is a high functioning high professional. The parties have two children. The older child is taken around the world by the father at access while the younger child remains with a friend. The older child is returned to the mother with all kinds of bizarre hair raising tales and illnesses. In this case the older child has the diagnosis of Asperger’s Syndrome and the father exhibits similar traits. Risk aggregates in these situations, where there is both child and adult neurological impairment, and this knowledge adds to the degree of the other parent’s moral distress. Father does not return the child to a relaxed parent, but to a very anxious and concerned one. Their “conflict” is intractable. They have spent over $600,000 litigating the parenting issues and little has changed. This parent is not only harming the child, he is also harming the mother with this behaviour (see Child Contact and the Unusual Parent Fam Law 2003) by causing her moral distress. From a legal perspective this is a couple entrenched in post-divorce conflict. It would be far better if they could be seen as struggling with some considerable ethical issues that cry out for redress.
Just as disability masquerades as high conflict in separation, so too does moral distress. [9]
While this father is not deliberately harming the child, he consistently exercises poor judgement around safety, such that the child is afraid and injured and ill upon return to the mother who in turn is constantly struggling with a child who nightmares upon return and who resists access.
Wallerstein, in her extensive study on post divorce adjustment (her findings are in The Unexpected Legacy of Divorce) asks the question whether divorce is itself problematic short and long term. Her conclusion is that it is. But divorce does not happen in a vacuum.
The bigger question is whether there is pathology in the family and whether that pathology makes for a worse outcome when the family separates as opposed to when it remains intact. This is a very complicated question. I venture that to the extent that on going post separation conflict is driven by the pathology itself, and to the extent that children are forced to fend for themselves in the face of that pathology (the other parent no longer being there to act as a buffer) the answer is yes, divorce is less optimal.
Where there is access to parents with a range of characterological problems such as personality disorders, delusional disorders (see for example Thaddeus Ulzen and Russell Carpentier The Delusional Parent and Multi-Systemic Family Issues Canadian Journal of Psychiatry 1997), neurological Impairments (see Jennings Linehan and Jan Schloss in Who’s Minding the Children? Child Contact and the Parent with Neurological Impairment International Family Law, November 2003) or other significant mental or emotional problems (see District Judge Mitchell Child Contact and the Unusual Parent Family Law March 2003) there are going to be significant ethical issues around access for all family members, including for involved children.
Currently access is freely granted to all but the most severely compromised parents and the parties are left to struggle on their own with the issues that inevitably arise week after week and that present in the family law office as generic conflict.
Once upon a time in family law battered female clients joked that when they called 911 for assistance during an assault, the police would say “there’s nothing we can do Ma’m. Call us when he kills you.”
That was an ethical problem.
Domestic disputes are now seen in a very different light than they were in the past, when domestic violence was perceived as being a private matter between a man and his wife. Likewise, we need to bring intractable access disputes out into the open, out of the sphere of the private domestic dispute (a quibble between divorcing parents) and address the underlying issues, especially where they revolve around child safety and parental moral distress. Especially where there are significant ethical issues at stake.
End Notes 1 [1999] S.J. No. 817 (Sask. C.A.) Q.L. 2If this sounds facetious it isn’t. Sociopathy simply does not present much of the time. We ought all ask if we would like to share parenting with a sociopath and if we had to, how would it look?
3Too there is the concept in Japanese culture of Oyako-Shinju (parent-child suicide) that is considered to be a beginning, a spiritual journey that reunites parent and child. This is an historical parenting choice in Japan that we see here as being a heinous crime. Oyako-Shinju has featured in California family and criminal law. What is perceived as a most heinous crime in the U.S has been seen as a solution to various family problems in Japanese culture in the past. 4How does a new Japanese immigrant mother or a Canadian or Japanese American woman view access? 5And we can see here how a collaborative approach to family reorganization would be an improvement over litigation in resolving these kinds of issues. 6Even if a Court were to order that the epi pen be taken along the custodial parent would still face ethical dilemmas which would appear in other areas of the access parents parenting, because this parent is on the autistic spectrum and suffers from mindblindness and weak central coherence. 7Maternal (parental) instinct may also play a role in post-separation conflict at access. Anecdotal evidence suggests that parental instinct is something requiring research in relation to post divorce adjustment for parents and children.
8See Jennings Linehan, S. Parenting Mediation in the Family with Disability Resolve Magazine, Family Mediation Canada, Winter 2003 and
Jennings Linehan, S. Special Needs Practice Issues for Ontario Mediators Solutions, Ontario Association of Family Mediation, Spring 2003
9See High Conflict and Asperger’s Syndrome Sheila Jennings Linehan 2003 on mediate.com
Biography
Sheila K. Jennings is a family lawyer and family court trained mediator in private practice in
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| Faye , Sammamish WA | 09/17/08 | ||||||||||||||||||||
| great article | |||||||||||||||||||||
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| Karen , Vancouver | 11/24/04 | ||||||||||||||||||||
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| Karen , Vancouver | 11/24/04 | ||||||||||||||||||||
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| Author , Comment Posted Anonymously on the web AS | 09/04/04 | ||||||||||||||||||||
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| Karen , Vancouver | 08/26/04 | ||||||||||||||||||||
| clarification | |||||||||||||||||||||
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See All 7 Comments