How Family Systems Fool the Divorce Courts (and Everyone Else) Part 2

In Part 1 of this 2-part article, I explained some of the basics of family systems: how they are powerful sources of support, how they seek stability above all else, how family roles are created, how they enforce behaviour and secrets, how they are influenced by larger social systems (extended family members and society) and how they resist change – even positive change.

In this Part 2, I explain how family systems adapt when there is a mental illness in the family, and how family courts misunderstand the importance of these adaptations. Since courts – and most people involved with courts – focus on individual rights and individual behaviour, they tend to misunderstand the powerful part that family systems play in past and future behaviour.

Family systems adapt to illness: When there is an illness in the family, the family system organizes itself around the illness. Everyone else’s needs tend to defer, so that the ill family member can get treated and the family system can survive the illness. For example, with the physical illness of a child, the parents focus their energies (and their arguments) around dealing with the child. Siblings’ needs are secondary to the child with the illness.

Family systems adapt to mental illness: If a family member has severe depression, alcoholism, schizophrenia, personality disorder or other mental disorder, the family adapts in predictable ways. The children adapt so that they can survive. If the disordered member is a parent, then the children watch out to see how to stay safe. In a 2-parent family, with a depressed parent or parent with schizophrenia, a child usually leans on the healthier parent to survive. They often avoid and look down on the dysfunctional parent – sometimes known as the “identified patient” – and form an alliance with the healthier parent. But if they are around the disordered parent a lot, their children work hard at strengthening the disordered parent with encouraging words, a strong alliance and sacrificing their own needs.

Dysfunctional parents may have “dual personas:” Drug addictions (including alcoholism) and personality disorders have “dual personas:” one public and one private. The public persona can be very attractive, smart, loving and kind. Other times they can be deceptive, manipulative, cruel and physically abusive. Children in these family systems often become confused and “hyper-vigilant” – so they know when to steer clear of that parent to avoid the “private” abuse, manipulation or other surprise behaviour. Such children often feel crazy, because they are told that the parent’s dysfunctional behaviour is actually appropriate or necessary; and told that functional behaviour is inappropriate and harmful to them. One or both parents may justify the dysfunctional parent’s behaviour or tell the child to ignore it.

Other adults (grandparents, family friends, professionals) may also feel crazy around this dual persona. In some cases, they learn to please the dysfunctional parent and focus their energies on calming that parent, because the other parent is fairly healthy and secure already. Children will do anything to survive, including lying, stealing, or testifying for or against that parent, if necessary. They will support the family system and will closely follow its power structure. Their number one goal is maintaining the stability of the family system and they are the most invested in keeping the peace, because they are the most dependent on it.

Misunderstanding Dysfunctional Family Member(s)

Unfortunately, in many families with an addiction or a personality disorder, the most powerful person is the dysfunctional parent – such as in a family plagued by domestic violence. Unless one spends a while with the whole family system, it is often not obvious where the power really lies. It may even be someone who appears outside the family power structure who is really the power behind the family, such as a grandmother or an uncle. That person may protect the secrets of the dysfunctional family member and excuse their behaviour. Dysfunctional families are often filled with “enablers,” who help keep the dysfunctional person stuck in their self-defeating behaviour because it serves to maintain the status quo. They are also filled with “negative advocates” who defend the dysfunctional person’s behaviour to employers, neighbours and the court system. The family adapts and defends the family system.

Joining the Family System

In the 1980’s, family therapists realized that when they worked with a family, they “joined” the family system. It was inevitable. They learned to “form an alliance” with the most powerful member(s) of the family, otherwise, they quickly became irrelevant. Families have a very powerful influence on everyone who tries to join them. They support those “outsiders” who fit in and resist those who threaten or try to change them.

Family Systems in Divorce

When people got divorced, prior to the 1970’s, one person (usually the father) often left the family system. That’s just the way it was. It was hard to tell whether they abandoned the family or the family pushed them out. In dysfunctional families, the story of the absent parent became the focus of the family. Discussions (or complete silence) about this parent helped maintain the family system – and distressed the children, who had no mechanism to heal the loss.

“The elephant in the room,” who no one mentioned, has been a common expression which originated with alcoholism. Divorce has had similar dynamics. In Family Court, most people don’t even know that there is an elephant in the room that is not being talked about. Family secrets are a big part of dysfunctional families. “Outsiders” will never know. While many stories may be told about each other in the family, the important stories are often kept firmly under wraps.

Today’s Family Court Issues

Now, 40 years after “no-fault” divorce laws established modern divorce standards (generally equal division of property, significant sharing of the children, and support of a lower earning parent by a higher earning parent), most families don’t even need family court to make their decisions. Generally healthy family systems find ways of divorcing that do not totally challenge their family systems, but instead maintain a less-intimate form of the familiar dynamics. Parents communicate, children see them both and conflicts are managed through minimal contact or active problem-solving.

Those who are left in the Family Courts today are primarily dysfunctional family systems and a few cases of unique new issues that need courts to make a policy decision. Most court decisions are about bad behavior, how to evaluate it and how to manage it. Discovering lies, hidden assets and income, and enforcing court orders have become the main issues of today. Restraining orders have become a huge part of the court’s work, as dysfunctional behavior and lack of self-restraint continues to grow in society.

Impact of Courts on Family Systems

Yet, because of the “dual personas” in dysfunctional families, courts have very little idea who and what they are dealing with. The “search for the truth” is much more complicated with people who are actively trying to hide the truth in family systems that have years of experience in keeping family secrets. One of the myths of family court is that victims of abuse will simply stand up and tell the truth, so that courts can protect them. Most victims know that they cannot have any confidence that they will be protected from the most dangerous family members.

On the other hand, perpetrators of abuse are very comfortable with the court process, because they have had years of experience in dominating their family systems through manipulations and lies and spreading rumors inside and outside the family. Speaking in public is easy for them and their “public personas.” And children – who have been trained since birth to cope with the secrets, rigid roles and danger – will do anything and say anything to survive – even to a judge.

Court procedures allow bullies to continue to push more passive family members around – “he has a right to speak.” Victims of bullying know better than to speak the truth and then leave the courtroom unprotected – so they often don’t speak, at least about the real elephants in the room. Courts are the worst place to determine true underlying family dysfunction. And putting parents and children on equal footing in the eyes of the law is a severe threat to a family system which knows the power structure of the family system and everyone is pulled to defend it.

So the result is that judges have to make their best guess about what is really happening with each party’s “private persona,” based on each party’s “public persona.” If the judge favors the weaker party, then the stronger and possibly abusive party will escalate his or her dysfunctional behavior in an effort to maintain the power structure and stability of the family. This can lead to violence outside of the courtroom, kidnapping children, financial manipulation, spreading rumors or other methods of asserting control.

If the judge favors the dominant party, then the court is simply reinforcing the dysfunctional family system and making life worse for a weaker or victim party. In both cases, the family system is knocked out of balance and the children are drafted to help regain its stability.

How Family Systems Fool the Courts (and Everyone Else)

Because of the strong pull to defend the family system, the information provided by family members – including extended family members – is highly unreliable. I have known cases in which the child was a result of a rape (in one case the child was a boy, another a girl), yet that huge information never comes out as the court weighs which parent the child is aligned with today (guess which one!). What happens when such a sexual predator is raising a teenage daughter? Yet the intimidated and rejected parent never brought that up in court.

I had a case once in which a father got custody of his teenage son, who he then used to bring home teenage girls to him. Fortunately, he went to jail for sexually abusing one such girl. Unfortunately, his sentence was only 3 months. That information never came out in Family court until after he went to jail and he returned to court to fight for custody of his son. Fortunately, he lost.

I know of cases in which children have admitted lying to Family Court Services counselors, saying they disliked one of their parents in order to please the more powerful parent, who then got custody. Alienation cases are one of the best examples of confusing family systems. From my representation and consultation with about 40 alienation cases, I believe that the child aligns with the more powerful and disturbed parent.

I know of cases in which one parent has sexually abused the child and the other parent protects the court from this knowledge. I know of domestic violence cases that never get to court, because the victim is too afraid even to leave, or can leave but is too afraid to fight for custody.

Family systems heavily influence the behavior of each member of the family. Dysfunctional families are under the influence of these factors, just as much as actively-using addicts are under the influence of their drugs. They are unreliable sources of information and should not be expected to present reliable information to the court.

Children Go Where the Power Is

Likewise, children are unreliable reporters when they are participating in a dysfunctional family. Children “carry the disease” of the dysfunctional family, as they have no other choice. Children go where the power is. They have been trained in the family disease, often from birth – especially when they have a personality-disordered parent (sometimes one, sometimes two). As family courts look to children as a source of information, they tend to be unaware of the influence of family systems. The question shouldn’t be “Is the child mature enough to provide independent and reliable information?” which is the question asked today. The question should be: “Why do we believe that anyone within a dysfunctional family system can be an accurate reporter?” A team of people outside the family system will be much more accurate in gathering and presenting information. (Remember, one individual trying to evaluate a family system will become part of the family system – that’s why you need a team, to correct each other’s biases and misinformation.)

Lastly, family systems are at their worst when they are defensive. Yet, the adversarial court process makes the family system very defensive and its members are usually operating in what feels like a “life-or-death” mode. Therefore, non-adversarial methods will be much more effective at helping such families, since we cannot accurately diagnose and treat them in the current model.

Today’s Problem

In other words, Family Courts are guaranteed to fail with dysfunctional families – and dysfunctional families are most of those still going to family courts these days. Because family systems resist change and outside challenges, any decision the court makes will be strongly resisted and increase, rather than decrease, family conflict. This is why dysfunctional families keep returning to court – to re-establish the status quo. Of course, a large number of dysfunctional divorcing families simply ignore court orders and/or the victims simply give up. Family court is based on equal parties with a civil dispute. If the parties aren’t equal and don’t come to court, then the court is not involved.

So What is to be Done?

By learning about and understanding family systems, professionals will be less over-confident about their analyses of the families they deal with. This is a good thing, because then they will create less chaos and frequent shifting back and forth, as the family fights to maintain a familiar balance. There are several recommendations that decision makers should consider:

1. If a real diagnosis of dysfunction needs to be made, then appoint a team to gather facts and analyze patterns of behavior, rather than pitting the parents against each other. A team is necessary, because no one professional can resist the pull of the family system to join it in its dysfunction in one form or another. Professionals easily get deceived by, confused by and angry at their dysfunctional clients. Many high-conflict family court cases have had several professionals serially involved over the years, with each making a new recommendation that dramatically shifts the family in a different direction than the previous one.

2. Maintain a high level of skepticism about what is going on. You will never know for sure. Family systems weren’t built in a day, yet decisions about family systems are often made in a day or less.

3. Resist the urge to make no-contact orders between a parent and child. Family relationships are like rubber bands – flexible, so long as there is contact. Family systems – and especially the children – will strongly resist no-contact with a parent, regardless of how dysfunctional that parent may be. Children need to know they are loved by both of their parents and can love them back. When safety is an issue and poor parenting behavior is an issue, then supervised and guided contact should be used. Children and their parents will fight to maintain a relationship, or become depressed and hopeless.

4. Analyze patterns of behavior, rather than allowing arguments over incidents. Families can argue forever about incidents and when judges and other professionals get involved, they are just joining the family system of argument and the “truth” will never be found. Looking at the larger pattern is necessary when it comes to understanding family systems. In many family systems, the person publically accused of bad behavior is often not the person engaging in the worst behavior. Many families have a “safe” scapegoat – often one of the kids or the most functional parent, because he or she “can take it.”

5. Don’t create unnecessary contests between the parties: Deciding who is the “better parent” or the “most attached parent” or who is the “most truthful party” and other contests are damaging to family systems, especially dysfunctional family systems. They need non-adversarial processes for making decisions, such as mediation or collaborative divorce. Safety procedures can be put in place and there is less repeat abuse after mediation than after court.

Today’s family systems are much weaker than in the past, when extended families, communities and many organizations were part of larger, more solid family systems. In the past, family systems existed within larger social systems of shared values, shared need and shared struggles. Nowadays, with all of our technological advances, families “seem” less necessary and we think as individuals. We don’t share values, needs and struggles – we can do it on our own, thank you.

With these social changes, families are becoming secondary to individuals. Divorce rates were low prior to 1970 when no-fault divorce laws came into effect. Previously, individuals had to defer to the larger common good of the family. Families had clearer roles and decision-making was based on the family hierarchy, rather than individuals making decisions based purely on their own desires.

New Skills

The skills that people needed in the social systems of the past emphasized following directions, not questioning authority and fitting into clearly-defined roles and clearly defined tasks. Nowadays, individuals are on their own and can (or have to) decide for themselves what they want, how to communicate with peers and how to negotiate on their own. Such a society of individuals can work, but we need to learn the skills. The old skills don’t work and the family court structure is based on the old skills – following directions, accepting hierarchies above you and living by the standards set by others. Today’s family structure is much more peer-based and our conflict resolution systems need to recognize that.

Most of all, children need to be raised in a secure-enough environment to develop internal stability and skills for negotiating this new world without the family system values and procedures. Conflict resolution systems which teach conflict resolution skills (rather than just judging people) and which guide them in using these skills (such as collaborative efforts and mediation of conflicts) are needed. Adversarial family courts are structured for all-or-nothing solutions – which are part of the problem for high-conflict families, rather than part of the solution.

Family systems are inevitable and part of human nature. What isn’t inevitable is that we will learn the new skills necessary to help people create and nourish more flexible family systems. We need to require parents to learn the necessary collaborative negotiation skills for the sake of their children, rather than putting them through adversarial evaluations and humiliating public hearings. And when decisions must be made for families, decision-makers must be truly trained and have the skills to investigate based on knowledge of patterns of mental illness and family systems, rather than guessing based on the arguments of dysfunctional family members. It’s time to admit our ignorance, so we can learn. The children of the future depend on all of us.

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This is a guest post by Bill Eddy a family lawyer, family mediator and clinical social worker, and the President of the High Conflict Institute. He is the author of several books including The Future of Family Court: Structure, Skills and Less Stress and Splitting: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder. He is also the developer of the New Ways for Families method of teaching skills to family systems (both parents and the children) and New Ways for Mediation for managing potentially high-conflict families. His website is www.HighConflictInstitute.com.

Misunderstanding Family Systems in Today’s Divorces: Part 1