High conflict divorce or custody battles in court are the worst, particularly for the children involved. Despite the fact that all the research shows the children are best served when their parents spare them of their conflict, inevitably about 20% of family law cases end up being flagged as high conflict, with the parents offering very different versions of what they believe is best for their children. When this happens, unfortunately the court often needs to get experts involved to get past the he said/she said problem and break the impasse.
One option is to ask the court to order a neutral mental health professional to conduct a custody evaluation. After meeting with the children, their parents, and other key figures in the children’s lives, the custody evaluator will make a recommendation as to the best custodial arrangement for the kids. While these recommendations are not automatically binding, they carry substantial weight with the court, so the parent challenging the report then has an uphill battle presenting his/her case.
Another option, is to request the appointment of a Guardian Ad Litem (GAL) or Best Interest Attorney (BIA) to represent the child. This child advocate is allowed to meet with the child regularly, participate in discovery and all hearings, call witnesses, file pleadings as needed, and can recommend whether the child’s privilege with a therapist should be waived. Often the goal is for the child’s attorney to proffer to the court what the child’s preference on an issue would be without having the child come to court to testify.
In high conflict cases, the court often orders that the parties cooperate with providing ongoing therapy for the child, and many times it is also recommended that the parents attend individual therapy. If the parents cannot readily agree on major issues, the court may ultimately give one parent tie-breaking authority or sole legal custody to ensure decisions can be made in a timely manner for the child. Sometimes, to avoid returning to court the parents agree to work with a Parent Coach or Parent Coordinator to assist them whenever they are deadlocked.
As you can imagine, navigating a high conflict custody or divorce case is not easy, and in addition to special training, years of experience are required before an attorney can be appointed to represent children in these matters. Here is a Youtube video featuring Melissa Kucinski, author of the ABA handbook for child advocacy, explaining the role of a child’s attorney:
