The Hidden Side Effects of an Adversarial Separation on Children

Thinking of taking your ex to court to decide parenting? Think again…

The adversarial court system is dangerous to the health of children. Despite warnings in social science literature that conflict is contrary to a child’s best interests, the court system fuels conflict. Sooner or later, despite their best intentions, lawyers and parents may find themselves defaulting to behaviour designed to wound rather than heal.

Here are some examples of the challenges parents and children may face in an adversarial court system:

• Law school training for lawyers (including lawyers who become judges) does not traditionally include courses on the emotional dynamics of family break-down or parent-child relationships or child development
• The adversarial system is based on confidentiality and zealous advocacy. There is no obligation for parents to share everything that may be relevant in making parenting orders, and therefore no guarantee a judge will have enough facts to decide what is really in your child’s best interests.
• The adversarial system is essentially “win-lose” – not the best way to decide the fate of your children. Parents, both of whom may be adequate in their own right, are encouraged to demean each other by focusing on the negative rather than the positive conduct of the other.

Parents are often not functioning well or not communicating by the time you separate. Since the court system is intimidating, lawyers tend to do most of the talking and decide what is or is not important for their client’s case. The court system does not help parents communicate or co-operate with each other, but you are still expected to work together after court to implement parenting orders.
The adversarial system encourages polarized positions. This feeds negative emotions such as frustration and anger, increases stress, and drains your family’s finances that could be better spent on addressing your children’s needs rather than prolonging their suffering.
Parents’ expectations that they will be heard, validated, and vindicated are seldom met in the adversarial court system. While a judge can make an order, it may have little impact on your family’s conflict. The order is about legal issues, while often it is emotional issues that are driving the case. The legal system does not find your emotions very relevant.

A child expert brought into court by one parent can be seen as a “hired gun” for that parent. And assessments of the needs of children for court are one expert’s prediction at one point in time, usually when a family is in trauma, following separation. This short-term assessment may be used by a judge to determine the dynamics of your family for years to come.
The focus in adversarial proceedings, despite “best interests of children” terminology, can tend to be more about the rights of parents, as you are the parties in the proceedings. Instead of feeling protected, your children may feel left out of the process and worthless, as their opinion does not seem important.

Incomplete Information in Court Decisions

The adversarial system is intended to make decisions for parents when they are incapable of making these decisions for themselves. However, judges cannot “micro-manage” your family or take over day-to-day decision-making.

Stability is important for children following separation. Courts are reluctant to change parenting arrangements once established. The first parenting order made in a case can be the most crucial. It often determines the “status quo” of where your children will live. But the first order is often made with the fewest resources available. If an order is inappropriate its damaging effects can be magnified over time, but over time it is also less likely to be changed.

And there is no guarantee a court order will really solve problems or end conflict between parents. The first court skirmish may end, but the emotional battle can continue out-of-court, with no protection for your children whose best interests were supposed to be the subject of the order.

A Better Approach: Mediation & Collaborative Separation

The good news is that for most families, court does not need to be your first option, and instead it should be your last resort. There are non-adversarial, child-focused options available for separating families – processes where parents can be supported, educated, and encouraged to maintain your roles as decision-makers for your children. Processes such as mediation and collaborative practice are specially designed to help you avoid the harmful side effects of an adversarial system.

In mediation a neutral, trained professional meets with both parents to help you negotiate a memorandum of agreement (‘MOU’) that includes discussions to help you focus on the best interests of your children. This MOU can then be taken by each parent to your individual lawyers to ensure you have legal advice before finalizing your separation agreement.

In collaborative practice specially-trained lawyers for each parent provide legal advice and support focused on negotiating a mutually-acceptable separation agreement. Parents can also agree to use the expertise of other collaboratively-trained professionals in negotiations. A neutral expert on family relationships can help parents improve communications, handle emotions and co-parent with a focus on the best interests of your children. A neutral expert on financial issues can help parents understand the financial implications of your separation and ensure your agreement provides for your children moving forward.