Cut It Out! Radical Resistance in Family Litigation

For the last three decades, I have worked in the field of high-conflict divorce, mostly as a therapist and parenting coordinator, and often as an advocate. I calculated once that I had been in front of more than 50,000 parents when I taught the court-ordered divorcing parents seminar for 18 years. I have mediated over 400 domestic cases and have been involved in more than 100 cases where parental alienation was alleged. Now, I co-host a podcast for high-conflict co-parents that recently hit 100,000 downloads. I think I can confidently say that I’m an expert in this field. I used to have trouble saying that because I never thought of myself as an “expert,” but more of a soldier. As a noun, that means a fighter. As a verb, to carry on doggedly. I proudly claim the latter.

Recently, I have taken to sitting in family court hearings to get an idea about how these proceedings really work. In the past, if I was called to testify, I only saw the inside of a courtroom while I was being questioned. Then they asked me to leave, and everything else was left for those involved to recount to me later. I am finding that sitting through all of it without testifying is something I wish I would have done 20 years ago. What an education it has been! What I have learned is how incredibly difficult it is for the parties to sit there in front of an all- powerful judge (someone who has the ability to give and take away time with their children) and be quietly terrified.

In one case I observed, I had been a therapist for one of the parties, and I just wanted to hear how the case was going to be characterized in court, given what my client had told me and what I had read in the court documents over a 7-year period. One witness commented on me and my work, claiming that I had become too much of an advocate for my client and had lost my objectivity. That was hard to hear! Although I knew what I had done and felt comfortable that I had not crossed the line as he was implying, it was difficult to sit there (in front of an all-powerful judge) and hear criticism about myself — criticism that I had no avenue to refute. It gave me a unique and personal perspective about how it must feel to the parties, when their co-parent is parading witness after witness into the court to testify about what a horrible person they are. I feel like I have pretty thick skin in my older years, but I can’t imagine how it would have felt to endure something like that during the most vulnerable times of my younger self.

In the most recent case that I observed, the judge had not been on the case until that particular hearing (which is a pet-peeve of mine all on its own). He seemed to rely totally on the frustration level of the guardian ad litem, who reported that she was tired of the case, the parties were equally horrible, and neither of them cared enough about their children to do the right things. That statement might be accepted on the surface as a referendum against most high-conflict co-parents, especially if you aren’t one yourself, but in my many years of doing this work, I doubted that was completely true. Most of the time, these parents have gotten way off course and both love their children deeply. Sometimes, one parent is the culprit, who can make life a living hell for the other. But that apparently was neither here nor there in this case. The judge responded to the GAL’s exasperating pleas with, “Oh yeah, I’ve seen this case before.” Not that he had actually seen THIS case before, but what he was implying was that he had been on the bench long enough to know what this case was about, without even hearing the facts. He had seen cases LIKE this before. In my professional world as a therapist, that’s a cardinal sin – to think that because a case seems familiar to you, you should then super-impose that familiarity onto the client sitting in front of you. It’s a dangerous thing to take that attitude, as we are taught you could do further harm to a client by not treating it with unique sensitivity. I guess judges do not have that same directive. If you’ve seen it once, you’ve seen it a thousand times, as the saying goes. Consequently, I was crestfallen within the first 30 minutes of the hearing, so I can only imagine how the parties experienced it. How hopeless it must have felt that any evidence they might present after that would just be seen through the lens of “I’ve seen this case before.”

At the end of the hearing, which lasted about 4 hours (45 minutes of which was the judge’s final lecture to the parties), the judge declared that he was not going to make any changes to the parties’ current agreement, except for a few minor issues, and that the parties should stop using the court to resolve their problems. He literally said, “Cut it out!” Stop bothering the court and get on with your lives. You have kids. Go love them, go take care of them, go pay attention to them because if you don’t, they will hate you when they’re adults. So, just cut it out! After the hearing, I spoke to one of the parties and he agreed to come on to our podcast anonymously, since it’s too scary to talk honestly in public about who did what in the courtroom. If he ever returns to the court with this same judge, how would it play out if he had spoken publicly about the truth? I don’t want him on the show to talk about the details of the case, the players involved, or how awful the court system is. I simply want him to talk about how it felt to sit in that chair, after spending a hundred thousand dollars on the break-up of his marriage, and numerous subsequent court filings, and hear those in high places simply tell him to cut it out. How does one “cut it out?” when you have had to think about this stuff every day for the last three years?

I’m not sure yet what I will say on that podcast episode, but I’m pretty sure we will talk about a phrase I think I am going to coin regarding family litigation: RADICAL RESISTANCE. So, if this party gets subpoenaed with yet another motion for contempt or modification, I suggest he goes into the court, unrepresented, and simply tells the judge, “You told me to cut it out, so I did. I refused to participate in the legal process anymore, so here I stand without representation, ready to accept my consequences from you, whatever they may be.” Would that kind of radical resistance to court involvement be a form of reverse psychology on the judge? Would the judge see him as crazy that he would come into court on a custody matter without legal representation? Or would he be glad to see that at least one parent refused to use the court to solve the problem? Which is it?

I want to talk to this party on the show about how to cut it out with his co-parent. If she refuses to answer his messages about their children, withholds parenting time, makes false accusations against him on social media (or worse to DFCS), what responsibility does he have to “cut it out?” Is cutting it out walking away? Is cutting it out giving in to every request she makes, even though the last time he did that, she claimed a mile and then some with the inch he offered? Is cutting it out not responding to lies that might be told to the kids about him? I would ask the same questions for her, so this isn’t a gender thing. It’s a human one.

For those of you in the field, don’t be surprised if you see me or my co-host, Rick Voyles, lurking in the courtroom to listen to how those in the system really treat these difficult cases. We intend to listen with receptive ears, but also process with parties publicly. It’s time to hold the whole system accountable. To that end, I’ll be carrying on doggedly.

4 responses to “Cut It Out! Radical Resistance in Family Litigation”

  1. Invite me on to talk. I have the experience as an attorney, GAL, and mediator and as a parent who went through a divorce where the money spent by both spouses on attorneys and the GAL generated havoc for us and for our child. The consequences are difficult for those unfamiliar to see (I saw them as they were happening and, in open court, spoke to them as much as I could to no avail). Diane, what you wrote is spot-on. Let’s explore more and share with your audience. OH, I am a participant in an appeal, or more accurately, ParentsUSA is as an amicus, where I write that judges have too much discretion and that opens the door for parents to fight to the detriment of their children.

  2. Brilliant!

    The system may blame both parties like two warring children, but it only takes one parent to be the gatekeeper of the children leaving the other parent with no choice but to go to court.

    Court should assign a parenting coordinator to help the parents implement the orders holding them accountable and responsible to put the childrens needs first rather than the parents needs.

  3. The system desperately needs some accountability and some understanding of high-conflict co-parenting.
    If there were ANY other system available to non-impossibles to keep their children safe, I am sure most would gladly exit the court, never to return.
    I would suggest anyone who might become involved in a child custody case do what you did and sit in on several cases in their local court. At least they won’t be completely blindsided about how the court works (or doesn’t) when they go for their case.
    Thank you so much for your efforts to improve the situation.