New Ways of Thinking About Matrimonial Litigation

Raymond Havlicek, PhD, ABPP, FAACP

The current, adversarial system for the resolution of child custody conflicts provides justice rather than resolution of family dysfunction and conflict. The current system is undergoing a welcome shift towards less adversarial solutions. The cost of the current system must be measured in terms of its impact upon the health and well being of children unavoidably in the middle of these conflicts, in addition to the financial burden of litigation and the probability of re-litigation.

Parenting Coordination and Collaborative Divorce are growing, cost effective interventions to matrimonial conflicts reflective of a trend towards less adversarial solutions. Both methods rely upon experienced, trained professionals who assist parents mediate their differences and implement a parenting plan. While other states are ahead of New York in implementing less adversarial methods, the New York State Matrimonial Commission has recommended the use of mediation and Parenting Coordination. Additionally, there is NY case law supportive of judicial decisions appointing Parenting Coordinators.

The current adversarial system limits the “emotional due process” rights of litigants in custody litigation by emphasizing the distorted goal of “winning.” The distress of attempting to “win,” and avoid “loosing,” inhibits flexibility, empathy, and recognition of the real needs of children of divorce to be conflict free, in addition to stimulating increased anger, “position hardening,” all of which limit the development of civil, collaborative, post divorce relationships.

The use of well constructed forensic psychological assessments in child custody cases could assist litigants and courts decide upon parenting plans, which best meet the needs of children in the middle. Properly developed child custody evaluations can “inform” Parenting Coordinators seeking to mediate pre-judgment conflicts by implementing a recommended parenting plan. Similarly, evaluations can assist courts decide upon a plan, which may be implemented post judgment via Parenting Coordination. Where appropriate, the judicial system should mandate pre and post judgment Parenting Coordination.

Parenting Coordination is a complex, demanding undertaking, which requires specialized, multidisciplinary training to ensure appropriate professional practice and results. The risks of alleged malpractice may be reduced through proper training. Some skills practicing psychologists develop may be of assistance, while others may be counterproductive to effective Parenting Coordination. Psychologists considering offering Parenting Coordination services should have significant experience in marriage and family therapy, and forensics, in addition to specialized training in Parenting Coordination, mediation and alternative dispute resolution skills, substance abuse, relevant family law, and domestic violence. Parenting Coordination training is available through the Parenting Coordination Association of New York.

Psychologists prepared to offer Parenting Coordination services may also find opportunities within Collaborative Law, by offering alternative dispute resolution and mediation services. Informed approaches to Collaborative Law may be achieved via the use of “mini-forensic” evaluations geared to provide less expensive assessments for the purpose of assisting divorcing parties reach mediated settlements deemed to be in the best interests of their children.

My NYSPA 2006 Convention Power Point Presentation, “New Ways of Thinking about Matrimonial Litigation, the Unrecognized Mental Health Dimension of High Conflict Marriages and How the Adversarial Judicial System Should Change to Provide for the Best Interests of Our Children,” may be viewed at www.drhavlicek.com.