The problem with Family Court: Part 1

Why Family Court does not work

Today, the family court process of litigation has been abandoned by most families, who can make their decisions out of court – with or without professional assistance. They have the skills to cooperate at a level that can manage the transitions that go with their new family structures. The families who are going to court today are those who do not have the negotiation skills nor the emotional healing skills to manage on their own. Yet putting them through the traditional litigation process simple exaggerates their resistance to everything – changing roles, loss of partners and shared parenting. Many of these families have one or two parents with personality disorders – which are increasing during this time of rapid change in our society. The adversarial process makes them behave worse and does little to truly understand their underlying problems.

Family Systems Theory

Family systems theory has been around for decades, but there is little discussion of it today. Yet understanding how family systems work can help professionals and parents going through separation and divorce. In this article, I explain some of the basics, some of what happens to family systems in divorce and how to truly help families in divorce. I also point out why the adversarial process of family courts successfully managed family conflicts in the past, but is guaranteed to fail today’s high-conflict family systems (regardless of procedural changes within the adversarial structure) – whereas skillful family mediation and other non-adversarial processes can succeed.

Family systems theory describes families as operating like the solar system: each member of the family has a “pull” on every other member of the family – like gravity pulls planets towards each other and other forces push them away, so that they stay in balance spinning around each other in a predictable orbit. Family systems have many common characteristics, including the following:

They are powerful: Family systems are a powerful source of support. You can take them for granted. Family members will consistently act in predictable ways, so you don’t have to guess each day. You can focus on what your tasks are and respond fairly automatically to each other. In this regard, a family system is like a personality – very predictable, so that you know what you can get from whom, when and where without putting a lot of energy into thinking about it. Family systems have built houses, companies (family businesses are everywhere) and nations (dynasties). For example, most successful Olympic athletes, musicians and actors had strong family support – from a very young age. The family system organized itself around their success.

They seek stability: A family system develops standard ways of doing things. The whole family participates in enforcing its code of conduct, values and roles people play in it. Even young children tell each other, their parents and their toys how they should or shouldn’t behave, which helps them learn the rules of the family system and follow them. Family secrets are kept, so that the family system is not thrown off balance. The more dysfunctional the family, the more rigid the roles to help keep it stable, the more extreme behavior and the more secrets to keep it as stable as possible. Everyone is part of the family system – no member is an “island.”

They create roles: In every family system, everyone develops a role. One member talks a lot and another may be quiet. One person is highly competent at one skill and another is good at something else. In traditional family systems, especially in rural societies, the roles have been very clear-cut. In modern times, roles are more flexible and may overlap, as family members interact with the larger society. This can cause instability, so that the family may spend more time arguing over roles or members may simply leave the family system and have little or no contact.

They are part of larger social systems: Family systems, like “nuclear families” (two parents and their child or children), are part of larger extended families, which are part of communities, which are part of regional cultures, which are part of nations and world social systems. The values, rules and behaviors of these larger social systems strongly influence smaller family social systems. As one changes, so do the others – but not necessarily happily so.

They are resistant to change: In times of threat from outside of a family system, the family can be very powerful, because everyone automatically knows how to behave and what their roles are. Regardless of internal squabbles, family systems can be strong in jointly warding off danger – especially threats to the family system. This includes resistance to positive changes. They maintain the status quo at all costs. They don’t let people change their behavior very much. They are always aiming for stability, like a ship at sea trying to balance itself in a storm.

Today’s Social Changes Regarding Marriage

Since about 1970, there have been dramatic changes in our larger social systems and within families around the world. We are shifting from fairly rigid family structures to quite flexible family structures. Freedom to divorce, gay marriage, multi-racial households, children born to unmarried parents, people living alone and a multitude of other changes are having unpredictable affects on the future of family systems and larger social systems.

In terms of the separation and divorce process (we now speak of “separation and divorce” because so many couples no longer get married), the relationship of Family Court to family systems has changed dramatically in the past few decades.

Individual over the family: Divorce laws gave social permission for people to get divorced at will, simply due to “irreconcilable differences.” If one person wants a divorce, they will have it. This creates an ease of disruption that impacts the whole family system. Rather than having skills to cope with these significant changes, many families instinctively put all their energy into resisting these changes in order to stabilize the family system – either by engaging in abusive behavior or publically blaming each other in an effort to get the public to force them to behave.

Lack of continuity: Families don’t last to raise the children in one household. The average age of children when their parents divorce is around 6 or 7 today. This means that they will be raised in two households longer than they were raised in one household all together.

Equal roles: In the past, one family member was the “breadwinner” and the other raised the children. In divorce 20-30 years ago, one family member often left the family system and the remaining parent raised the children. Now, both parents are expected to work and both want to raise the children. Both need new skills for cooperating in ways they never did before.

The Changing Role of Family Court

From approximately the 1970s to the 1990’s, family courts have been setting divorce policies that define these changes. Parenting is supposed to include “significant time” with both parents. Both parents are supposed to earn an income and child support and spousal support are supposed to adjust for differences in earning ability. Former spouses are free to engage in sexual activity of their own choosing. “Get over it” is a common expression heard in family courts, when one party resists the changes of the other. The individual is primary now. During this time period, the divorce rate rose to about fifty percent of marriages. Courts made decisions, the parties’ followed the court’s authority and new family routines were established.

Starting around the 1990’s, surprising changes occurred. Methods such as mediation and family lawyer negotiation took over the role of courts in family decision-making. Lawyers and family mediators simply educated the parties about the laws that had been established over the prior 20 years and the parties started avoiding court all together.

But at the same time, the remaining cases in family courts started to focus on family violence, restraining orders, child alienation and supervised visitation. These were the families who were unable to make the shift to the “new world family order.” Much of the family violence was perpetrated by men who saw themselves in the traditional role of being “head of the family.” Their violence (often reactive and unplanned) was aimed at keeping their wives in the family and under their control. Much of the alienation and false allegations were perpetrated by women who saw themselves in the traditional role of “in charge of the children.” Their efforts (often unconscious) seemed to be to resist the changes to equal roles in shared parenting.

Non-adversarial methods are needed

Non-adversarial methods are needed for today’s family court cases. That is why methods such as mediation, collaborative divorce, family lawyers assisting in negotiations and judicial dispute resolution are the way of the future – especially for these family systems in pain and resistant to the changes of the larger society. This is why skills training is needed for the whole family to help the whole family system go through these changes and into new forms.

Family systems – especially dysfunctional family systems – will resist family courts until we learn these lessons. This is not to say that there is not a role for family courts – it’s a different role which needs new knowledge and skills for understanding and managing dysfunctional family systems and their common mental health issues today.

Part 2 of this article will focus on managing mental health issues in family court and out of court with non-adversarial methods, including mediation and collaborative divorce.

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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.

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