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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

High-Conflict Divorce
Janet R. Johnston

Implications for Social Policy

What kind of public policy with respect to custody and visitation is supported by the current body of research on high-conflict divorce? The more conservative approach is to note the limitations of this research and to conclude that there are no policy implications (the studies are too few, comprise small non-representative samples, have not adequately demonstrated causal relationships between different custody/access arrangements and child outcomes, have not differentiated between children of different ages, and have not examined cultural differences). This conclusion, however, leaves no guidelines for daily decision making in family courts. A more helpful approach is to propose a number of principles that should guide custody decision making, recognizing that individual cases raise multiple issues which require good clinical judgment and judicial discretion. It is also important to note that these policy principles may change as more becomes known about these families.

Key Principles

 

  • Children need custody and access arrangements that minimize the potential for ongoing interparental conflict; they especially need to be protected from exposure to violence.51
  • Children are better off in the care of a parent who is relatively free of psychological disturbance or substance abuse inasmuch as both of these conditions compromise parenting.
  • A good parent-child relationship is the best predictor of good outcomes in children. It is this domain that should carry considerable weight in determining a child's primary residential arrangement in these families.
  • The present research base indicates that high-conflict divorced parents have a relatively poor prognosis for developing cooperative coparenting arrangements without a great deal of therapeutic intervention. The fourth principle, then, is that custody arrangements should allow parents to disengage from their conflict with each other and develop parallel and separate parenting relationships with their children, governed by an explicit contract that determines the access plan. A clearly specified regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum. This fourth principle implies, therefore, that joint legal and joint physical custody schedules which require careful coordination of the child's social, academic, and extracurricular activities are generally inappropriate for this special subpopulation of divorcing families, as are frequent transitions of the child between parents for visitation purposes. This principle may need to be modified for very young, preschool children who have difficulty remembering an absent parent unless access occurs at more frequent intervals.
  • Where there is concern about the capacity of both parents to protect the child from the interparental conflict and their own disturbed attitudes and behavior, it may be appropriate to give more weight in the custody/access decision to providing the child with continuity in relationships with supportive others (such as teachers, peers, grandparents) and stability of place (such as neighborhood and school). In these more difficult cases, custody and access awards can be made contingent upon either or both parents' obtaining appropriate counseling (for parenting, violence, substance abuse, and the like). Finally, if conflict continues, children themselves may be better protected if a court order assures them of direct access on an ongoing basis to their own counselor, one who can maintain a positive or equidistant relationship with both parents and help the children directly.