Moral
Distress and High Conflict
By Sheila Jennings Linehan
© July 2004 All Rights Reserved
Ethical Literacy and Family Law:
When lawyers and mediators contemplate the
subject of access, it is most frequently from within a legal framework. Some
divorce professionals (for example social workers and psychologists) working
with high conflict families of divorce, also think about access in terms of
psychodynamics. Custody and access assessors cover off ethical issues pertaining
to evaluations in their training (see Stahl P) but also get necessarily co-opted
into the legal perspective. Separating parents, and their children, the
principal actors in family law, operate from a variety of places, including at
least in part, ethically driven considerations.
There are many ethical issues inherent in
family law, some of which glide on the surface of our consciousness and others
which lay beneath it. Family lawyers and mediators face difficult question
questions and one that should be added is the question of how ethically literate
are we really?
Access Ethics: We have ethical precepts. One we
hold close as professionals and that is well entrenched in the legislation is
that: the denial of access is wrong.
That it is wrong for one parent to stand in the
way of or thwart, parent-child access is a moral value. We judge custodial
parents or guardians as acting wrongly where they fail to ensure that there us
reasonable access at reasonable times. This moral judgment is supported by
courts across the land. Judges do not look favorably upon custodial parents who
deny access to the other parent.
The literature addressing access denial and
interference of access focuses on serious problems like parental alienation
syndrome (Gardner R) and children who are caught in the middle (see Garity and
Baris) of adult conflict.
There is an under recognized problem in Canada
with non-custodial fathers failing to exercise their access. Indeed, in one
Canadian Department of Justice Report this was described as being more prevalent
than the problem of access with held by mothers. This too is an ethical problem,
but one that has received very little attention. Proximate or actual abandonment
of a child by a parent is not, most of us would agree, morally right. This is
rarely addressed in the literature. Studies show that the much less common (but
much more talked about) withholding of access by mothers is generally due to
maternal concerns about child safety and well being. Child well being and safety
are ethical considerations. We don’t see very much about the reasons for denial
in the literature either. We ought to, primarily because it touches upon the
ethical issue of moral accountability when something at access goes terribly
wrong.
Nomenclature and Ethics: It has come to our
attention as divorce professionals that the core family law word “access” is
problematic, and that its use offers many ethical issues for consideration. This
is not a discussion about mere semantics. Words carry a great deal of weight and
meaning and words are powerful. A word can, in the abstract, define a
relationship in the mind of listeners.
It had been suggested that the terms custody
and access imply that children are chattels owned by their parents. This is
ethically problematic from a children’s rights standpoint and it’s ethically
problematic from a human rights stand point.
The word access also implies that “the access
parent” has somehow “lost” their child. The notion of access is akin to the
property law term easement. It is a lesser property interest of less value than
full ownership. It is a smaller right to use. Some parents feel they are only
renting their children or worse still borrowing them. Canada’s Bill C-22
proposed that the words “parental responsibility” be used to replace the terms
custody and access. The jury is still out on whether this will be a meaningful
change or not. Status of Women’s Groups across Canada have been studying the
ethical and legal implications of this possible change for some time.
Then too there is that other term, custody
battle. This is, in effect, an ownership war. Custody battle is a term that one
hopes will vanish from the family law lexicon one day.
Either way, we know that the use of these terms
is antithetical to the spirit of meaningful post separation dispute resolution
because the terms custody and access themselves set parents up for conflict.
This is an ethical problem for the divorce professions, which profess to be
resolving the biggest dispute of a life time.
Our goals of dispute resolution are thwarted by
the defeating nature of the language employed by us to resolve the dispute.
Substantive Ethical Issues at Access: There are
various substantive problems that present after separation that carry ethical
implications. Many of these are viewed as being primarily legal problems
requiring legal solutions. The reason these legal problems are so very thorny,
is because they are not strictly legal problems to begin with. Legislating
morality has always been problematic, and it is even more so in family law where
the ethical issues are often buried deep beneath the surface, labeled as
post-divorce “conflict”.
For example, there is the issue of mobility. If
one parent wants to move to New Zealand to study orthodontics because she did
not get into a program in North America, and she wants to take the child with
them and remove the child from the other parent there is an ethical issue that
must be confronted. Father in the this case opposed the move. There would be no
question that he felt it was morally wrong for his child to be taken away from
him for such a lengthy period.
Court cases focuses on right and entitlements
of parents in mobility cases. In this Canadian case the court also did an
extensive best interests test and permitted the custodial parent to take the
child across the world. Access was to be exercised by phone and over vacations.
Legally this case was resolved, but the ultimate issue hasn’t been; whether it
was right or wrong to remove the child from the jurisdiction and from the other
parent remains an ethical debate for many. This is the question that lay beneath
the dispute.
The issue of religious differences between
parents also offers examples of ethical conflict, especially around their impact
on important medical decisions and the care of sick children. For example there
are the cases involving Jehovah's Witnesses where one parent refuses a blood
transfusion for a dying child on religious grounds, while the other parent
supports a blood transfusion for their child. Often in these cases Child Welfare
agencies step in and force the moral issue.
There are also ethical issues that revolve
around spousal support. Husband leaves wife after twenty years of marriage and
wife signs a separation agreement agreeing to two years of spousal support. She
has done this imagining it to be enough to update her credentials and return to
the labor force, but then she develops breast cancer. Her husband is legally
correct in opposing her claim to continue spousal support during her
chemotherapy. Is he ethically right though? What if this wife was abused for ten
of those twenty years and we find out that breast cancer is stress related? What
if the cancer is terminal? Does it matter? What if husband started having an
affair after she was diagnosed with breast cancer and then left her, does that
make a difference and should it?
It is the family court which decides the
ethical apart-family problem, as a legal issue to be determined on legal
grounds. It is in the family court that a panoply of moral dilemmas that
masquerade as simple conflict are fought out. Unlike in the ethical dilemma
presented in the novel Sophie’s Choice, the ethical dilemma’s of family
law/mediation are not constructed from bad but rather from good intentions (and
we know where that road leads!) and this fact makes them even trickier.
Moral Distress: No matter what we call it,
whether it be access, time sharing, parental responsibility, spending time with
or shared parenting, we are in fact talking about supporting a relationship and
not about time. The label “access” clouds this fact.
An important ethical concept that is focal in
nursing practice is a condition called moral distress. Moral distress is what a
nurse experiences when s/he is given a medical order for a patient that s/he
must carry out, but that s/he sees is clearly not in the patient’s best
interests.
Nurses carry out physician instructions as
required even though they may disagree with them, even though they feel certain
that their patient will be harmed by the action. The nurse who carries out the
order is then forced to watch the patient suffer under his or her care if she
was right and the treatment was wrongly prescribed. There are many internal
conflicts that take place, namely that nurses ought not be causing harm, that
they are there to heal that they are responsible for a patients suffering and
there is guilt associated with the fact that they knew better, but did it any
way. This leads to moral distress.
The concept of moral distress can be
transplanted from the nursing profession into the family law and mediation areas
of custody and access. It describes well the ethical issue inherent in the
Gordian Knot of sharing time with a parent who in some way or another lacks full
parenting capacity, the situation where there is access denial on either side,
where a crisis has occurred just after the papers are signed and so on.
While nurses deal at arms length with patients
(they are not intimates as are parent and children), this is not the case for
our clients. For this reason, the moral distress that appears at access or in
other areas at separation is all the more distressing.
In both cases there is a trust relationship
where the patient/child relied upon the party to look out for their best
interests. This special trust carries with it a moral obligation, and clients
who are forced to act against their sense of morality may discover themselves
in moral distress. Where parents have not succeeded in getting court orders for
supervised access in what appear to the courts to be borderline cases, where the
access parent has undefined or undiagnosed character logical problems that defy
classification or diagnosis, the stronger parent suffers from moral distress
each time they pass their child over into the hands of the other parent and that
they suffer moral distress again when the child returns to them, especially when
their child returns depressed or hurt or neglected. Anecdotal evidence supports
this view.
When a family lawyer or mediator is
re-negotiating a residential schedule for parties who have for example, two
children who have ADHD and who have been entrenched in battles ever since the
implementation of the plan, they need to look closely at what is really going
on. The ADHD did not come from nowhere. Chances are one of the parents has it,
or something similar to it and that this is impacting on parenting and driving
conflict. Having a child forgotten at various places by a parent with (in this
example) ADHD is not conducive to post-separation harmony. The law appears as a
callous passer-by when it fails to stop, look and address these kinds of moral
injuries for parties at and after separation.
The setting out of access by lawyers and
mediators was intended to be the end of conflict, but in these kinds of cases it
is just the beginning. The law has set out access, but the parent keeps
forgetting the child places at access. Leaving access undefined and vague in
cases like the example above is ethically problematic for everyone involved,
including the professionals.
The “shoulds” fail. Perhaps this family should
have had a custody access assessment. They may have. Or maybe they could not
afford one. The affected parent should have help or support. But refuses, or
can’t afford it. In these ways, a variety of problems undermine safe successful
time sharing, and leave the parents looking simply conflicted when in fact they
are not, they are struggling.
Non-affected parents in these situations grieve
their inability act on their own moral evaluation (to protect their children in
a situation they perceive as being risky or in some cases overtly harmful)
whether or not they are engaged in protracted litigation. All of our clients
have a moral life that they are living through.
Parents in conflict are currently viewed as
having dubious or suspect motives. Often they are labeled as being in a “high
conflict separation” (the kiss of death), and their children are seen to be
dangerously caught in the middle, something the parent can appreciate is a place
they do not wish their children to be.
Most parents want what is best for their
children, and I believe they know what is best for their children too. It is
this that professionals need to keep foremost in mind when faced with parties
complaining about problems with the other parent.
Ethics in Separation: There are no extensive
studies on the impact on the mental or physical health of clients who are forced
to act against their ethical sensibilities (as opposed to mere preferences) in
the more difficult custody and access cases.
Our neglect of the subject of ethics in work
with clients in issues revolving around custody and access is part of the reason
why we have failed to successfully tackle so many of the underlying issues
inherent in many of the mid to high conflict cases. Viewing client dilemmas as
mere legal problems prevents their being solved at the level where conflict is
often generated, in the client’s moral mind (or heart).
We demean our client and the opposing party’s
client when we look at them and attempt to assess the real reasons for their
emotional distress around access. We ask ourselves if they have ‘moved on’ yet,
and if not why not, we ask ourselves whether these parents are insecure,
conflicted, lonely or simply jealous of a new partner. We try to second guess
them. We tend to view separated parents and their access complaints with the
view that there must be an ulterior motive somewhere if only we can find it (to
punish the other parent, to remain engaged with the ex-partner, to exert
control) and in so doing, we strip our clients of their altruism, of their good
will and their good faith and we forget the possibility that this client may
have already walked the moral high road and suffered because of it.
Not all high conflict separating parties get
value from conflict, I also don’t believe they can escape it unless the real
causes of it are addressed. Especially where the issues have an ethical
component.
Schneeberger v. Schneeberger 1 The Canadian
case Schneeberger v. Schneeberger illustrates ethical issues in the family law
context.
Dr. Schneeberger was a South African physician
working in Canada in the 1990’s. The doctor married a Canadian woman toward whom
he was violent and threatening throughout the course of their difficult
marriage. The parties had two daughters.
When the girls were toddlers, their father was
charged with two counts of sexual assault, one an assault of a thirteen year old
step-daughter, the other, the sexual assault of a drugged female patient.
Dr. Shneeberger was further charged with
obstruction of justice. He had inserted tubes of a male patients’ blood into his
arm in order to thwart DNA test results regarding the rape charges. This
physician was subsequently investigated also for immigration fraud.
One might think of this man as having a
personality disorder or some other kind of character logical problem like
sociopathy. Certainly nothing that presented as significant at the time that the
family court ordered access.2
This access order (from another jurisdiction)
was still standing when Dr. Schneebereger was sentenced to prison. Family court
Judge Justice James Foster ordered the children’s mother, Lisa (now Dilman) to
take her then 5 and 6 year old daughters to the prison where their father was
incarcerated for access. Prison access is not uncommon.
Ms. Dilman initially refused to carry out the
requirements of the court order, but was taken to court and found in contempt
and fined $2000. When she finally took her daughters to prison for access, there
were protestors outside the gates and a social worker present who intervened in
her crossing the threshold, saying that the children were becoming distressed.
In the end, Dr. Schneebereger waived the access.
These girls had spent very little of their
early lives with their father, and the mother felt that the risk of harm to them
outweighed their need to see him. This weighing of benefit versus harm is part
of what it is to be a parent. It is an inherently parental exercise, a moral
exercise that is at the heart of raising a child.
Weighing (in this case the best interests test)
was also what the Court undertook. But the court came up with a different
conclusion than the parent. The mother in turn assessed according to her own
values whether the courts decision was ethically justified. She decided it was
not, and acted accordingly.
What the law found and what mother felt were in
direct conflict. In this case the media and the community jumped on board with
what appeared to be moral outrage. They supported the mother.
“Lisa’s Law” evolved as Private Members Bill
C-400, a bill to amend s.16 of the Divorce Act. Lisa’s Law was proposed as
section 9.1 to the Act which would suspend any right of access by a
non-custodial parent while that parent is serving time where the child in
question was a victim of the crime or where the crime was a sexual offence and
where the custodial parents did not agree to the access. Lisa’s Law appears to
be an ethically driven idea.
When finally Dr. Schneeberger was released, it
was with a no contact order with respect to the mother and his children and with
the requirement that he report all contacts with women to the police.
The defendant was perceived by the criminal
justice system as a dangerous past offender, but up until the mother’s refusal
to permit access, he was legally someone who should be exercising access to his
children according to the family justice system.
The Canadian Bar Association opposed Lisa’s Law
on several grounds. In a letter to the Standing Committee on Justice and Human
Rights the CBA concluded that the proposed law was well intentioned but
misguided, and noted that this provision would conflict with the Divorce Act
provision encouraging regular contact between children and their parents
consistent with the children’s best interests. The CBA is correct in that the
law must support parent child relationships. We have yet to take this one step
further and require (as some have suggested) that courts be required to monitor
the protection of the best interests of the same children whom they order into
the care of and contact with an abusive or significantly dysfunctional parent. I
argue that this is an ethical imperative.
Functionalism and Ethical Issues for Children
at Access: Children of divorce are directed by support professionals, mediators
and lawyers to adjust their behavior in a variety of ways to support the new
way of life post intact-family.
For example, children are advised not to
“report back on” what goes on in the other parent’s house. Parents are told
firmly not to inquire as to what goes on in the other parents home (this is
presented as a boundary violation). This is intended to be supportive of creating
a new two-home status quo for the apart- family.
Family Law Injustice: The client in the office
is an ex-prostitute and drug user. She has come to the office because three of
her children have been apprehended and placed into care. She wants them back.
The children were placed into care in part because her boyfriend, also her pimp
and a violent gang member who spends most of his time incarcerated, is seen to
be a threat to her and to them. “But” she cries bitterly “My girlfriends’ kids
are all being diddled at access all the time, and they get to keep their kids!”
It is plain that the client perceives an
ethical injustice in her case. This upsets her greatly. In fact, the injustice
seems even bigger for her than the fact that she has not seen her children for
several days. Her point is that her children are not being sexually abused and
therefore should be returned to her care. Presumably, her friend’s children who
are being interfered with sexually do report back, for how else could this
client know this. This client is morally outraged, and this outrage will be her
modus operandi, at least in part. Practitioners in the area of poverty law see
this a lot.
Imagine giving this same advice not to report
back to a child in an intact family. We encourage reporting in intact families
because it is the safe thing to do. Asking children questions and listening to
the answers are hallmarks of good parenting.
This is just one of the many ways that the
children of divorce are placed at risk by the view that parents must give up
control over their children as a concomitant of successful separation. That they
must make this adjustment quickly and without ambivalence is an admonition we
give clients for their apparent well being.
This piece of advice is also handed out to
children in divorce workshops and in books for children on divorce. This stance
is a by-product of “functionalism”. There is a bias in the literature on optimal
post-divorce functioning towards functional apart-families, as opposed to
dysfunctional apart families. Many separating families cannot operate based on
what works well with higher functioning parties.
The admonishing “no reporting back” creates
ethical dilemmas for both parents and children. Properly attached children need
to share and confide in their primary attachment figure. This is ever more true
where there is time sharing with a parent who has significant character logical
problems, mental illness, an impairing physical ailment, sociopathy, personality
disorder or other cognitive problems such as a neurological dysfunction or
injury. June and Ward Cleaver might have managed a separation with Wally and the
Beav with a “no reporting” rule, but the Cleaver’s are not representative of the
majority of client’s we ask this of.
Directing children not to report is, under
these circumstances, the same thing as leaving them to fend for themselves.
Where mom is an alcoholic, and the parties are separated, the child needs, for
safety reasons, to report. Telling the child not to is ethically questionable
and furthermore presents an ethical dilemma of access for children and it
presents ethical dilemmas of access for parents also, who, once told not to ask
questions about what goes on at the other parents house recognize that gaps
exist in their knowledge about their child’s life and feel ethically
compromised..
Divorce Complex or Ethical Issue? One kind of
so-called divorce pathology seen to exist by divorce professionals where there
is access denial or complaints by mothers in particular around the quality of
access for their child, is that mother cannot see herself as a separate being
from her children. She is seen to be suffering from a neurosis or poorly formed
sense of self. Another kind of divorce pathology we feel we see is that
father/mother wants to punish the other parent by taking away the relationship
with the children.
Sometimes, when we see separating parties first
with a million savage words on their lips, we fail to see the underlying issues
that prompt their (I argue) legitimate concerns. We do a disservice to clients
when we view them as suffering from grossly overly simplified divorce complexes.
We are in our infancy in what we know and
understand about the complexities of family breakdown in the West, and in our
infancy in the study of the psychology of custody and access problems. It is
easier for us to throw these kinds of problems back to the client, otherwise
we’d have to shoulder some responsibility for them.
Not all mothers who wish for better quality of
access or less access or temporarily supervised access for their children are
enmeshed with them. Yet we jump to pathologist mothers who complain about access
and who want to change it.
Some parents do use their children as pawns and
as weapons against former partners in an effort to hurt them for past losses. Or
worse, they attempt to alienate children completely from their other parent.
This ought to be seen as a crime (it is a moral outrage) and not merely a
syndrome (Gardner R).
But this is not nearly as common as are the
much more frequent run-of-the mill problems encountered by separated families
where there is alcoholism, incest, drug use, mental illness, neurological
problems and so on, and where the desire to address problems with visitation
while vexatious and litigious are often quite legitimate. Labeling clients who
are struggling with refractory conflict only serves to damage the credibility of
the helping professions (which I believe family law is one of).
Culture, Ethics and Conflict: As professionals
we also need to become aware that much of what we see in terms of conflict is
culturally determined and that this is true with respect to what the client
experiences as conflict as well.
In Japan, “Mother and Child” is encompassed by
one word, (Oyako). In fact, in Japan the mother-child relationship is the most
intimate relationship a child will ever have, more intimate than any romantic
love relationship the child may have later on in life. Does this mean that all
Japanese mothers are enmeshed?3 I mention Japanese parenting norms simply to
point out that the parent-child relationship is a complex one, and one which
varies greatly from culture to culture.
In our courts and offices we are dealing with
clients from a variety of cultures and backgrounds and this makes for added
layers of ethical conflict at the time of family breakdown. 4 While this is the
topic of another paper, it forms part of this discussion,
Ethical Issues for Parents: Clients leave
marriages for many reasons: they leave because of significant emotional and
physical trauma, they leave to flee past trouble relating to conduct of the
other parent (violence, substance abuse) and in his or her partners extended
family, they leave or are left due to a failure of commitment, because of mental
illness or other character logical problems in their spouses or in themselves.
Clients flee to escape the pattern of abuse
they grew up with, and then married into, they leave because they have changed
or rediscovered another or better or different way to live or are left because
their ex-partners have.
And there lies the rub.
These are human and moral issues. If a court
orders a party to send their children back into the “other life” every other
weekend, it will not sit well.
Your client’s sixth sense may be telling him
there is something going on with mother’s new boyfriend and his daughter, and as
a parent, your client has a need to be assured this possible ethical issue is or
is not in fact a more concrete issue. Unless he is reassured that the situation
is safe for his child, he has an ethical problem that will present as conflict.
5 Unfortunately in the current professional environment, his concern will more
likely be interpreted as a desire to violate boundaries in that household. He
may also be pathologied as being controlling and over-involved.
Example of an Ethical Dilemma: An agreement is
mediated where there were clauses drawn up stipulating that there be no
pornography or cocaine used around the two year old child at access. This clause
goes in under a section called parental conduct that ostensibly to apply to both
parents. One parent is a born again Christian who does not drink or smoke and
the other parent has a criminal record and an extensive history of substance
abuse and who works in bars. The mother in this case suffers enormously knowing
this clause might be disregarded, and so does the mediator seeing this client’s
deep concern for her young son.
These parents live in different cities and the
mother can not check up on the child’s father’s conduct. The bi-monthly handing
over of their child causes her significant moral distress, but she does it
consistently.
Her ethical dilemma is that on the one hand she
wants this child to have a solid relationship with his father and she plans to
support that. On the other hand, she needs to know that the child is safe and
her gut tells her the child’s safety is compromised.
For parents not caught in the child welfare
net, custody and access can become the forum in which these kinds of ethical
dilemmas play out. These parties were referred with the label of “high
conflict”. This is not conflict per se, this is ethical dilemma. The label of
ethics is not semantic. Once the big issue for the parties was addressed fully
(accountability and safety) things calmed right down and there was an agreement.
In the current system, the ethically conflicted
parent may not be permitted the luxury of making ethical choices around his or
her own children. This is on the one hand intolerable and on the other hand
inevitable. The loss of the ability of make an ethical choice for ones child is
huge. It simply can’t be ignored
Example of an Ethical Conflict: The mother who
sends her peanut allergic child off every Wednesday evening to spend time with a
father who simply refuses to acknowledge the life threatening food allergy of
their child, and who takes no precautions against possible peanut contamination
of foods faces an ethical conflict. 6
The child reports to the mother that the father
takes him to Thai restaurants and leaves the doggy bag in an unmarked bag in the
fridge. He does not bring the child’s epi-pen with them to the restaurant and
the child is forgetful himself. Mother is aware that father disbelieved the
allergy-immunologist when he pronounced the asthmatic peanut allergic child to
be “at high risk of anaphylaxis” (fatal allergic reaction). She was there when
father said “rubbish” in the doctors office.
Maternal/parental instinct 7 tells this mother
not to send her child to the father for access (her gut screams “No”) yet, the
court tells her she must.
The denial of her parental instinct (her need)
to protect her child, who is objectively and not merely subjectively at risk
results in moral distress in both mother and child, a kind of ethical crisis
caused by the clients need to over ride their own code of ethical behavior and
pushing the child out into a situation she perceives as unsafe and which is in
fact, unsafe.
This woman was dealing with a father on the
autistic spectrum who simply did not perceive child risk. Over the long term, I
suggest that chronic moral distress leads to ‘moral trauma’ (a word I introduce
here to describe a deeper more prolonged kind of moral distress).
If the client in this case fails to comply with
the court order for access, even for a period of a few weeks, she may see
herself on the receiving end of a contempt motion.
The flip side of this ethical issue is that
even though the other parent is compromised in terms of his parenting capacity,
there still needs to be a relationship between parent and child and I argue that
it ought not be one that is artificially and commercially supported in an access
center.
The access parents in these kinds of cases are
not all problematic enough to require that kind or type of supervision, but at
the same time, many of these parents lack the parenting capacity required to
care for a child on their own over a lengthy period of time. This is an ethical
problem for our profession, which has set rigid boiler plate guidelines around
what access should look like.
Reasonable access at reasonable times makes no
sense when parents present with so many varying neurological and cognitive and
behavioral profiles. What is reasonable under one set of parental circumstances
may be quite unreasonable under another. Family practitioners need to begin
accommodating parental and child differences at access in a more meaningful
way.8
One Size Does Not Fit All: These kinds of cases
are the ones that presently fall between the cracks. These are also the cases
that get the “grab bag” label of “high conflict”. We must disavow ourselves of
the notion that only dysfunctional “still engaged” separated clients are the
ones to wind up in high conflict custody and access disputes.
Ethical conflicts at visitation necessarily
make for high conflict (it is difficult to imagine an ethical conflict around
children making for a low conflict).
Many parties struggle with concrete but
unperceived mental health problems such as shadow syndromes, sub-clinical in
nature (for example dysthymia rather than full blown bi-polar disorder),
character logical problems (personality disorders), neurological problems (like
Asperger’s Syndrome or traits of high functioning autism) or other problems like
post traumatic stress disorder or low grade depression, or severe ADHD. These
problems affect parenting capacity and show up as a post-separation issue as a
result.
In the case of the child reporting back to his
mother that he ate Thai food at his father’s house during an access visit, this
fact causes moral distress to the child also because the child knows the mother
will suffer from this dreadful knowledge at his hands, and the child knows too
that he is tattling on his own father, something which makes him feel conflicted
and the child may feel his or her life is being threatened (which in fact it
is). The child must struggle with the obvious issue of less than optimal
parenting in the one parent and he needs to be cognizant of and ensure his own
future safety. Self-parenting at access is an ethical issue.
These kinds of situations, not all that rare,
present ethical quagmires that we must start looking at more closely.
Children should not be caught within these
kinds of ethical webs. They are not only caught in the middle of their parent’s
access disputes, they also are caught in the middle of the ethical issues that
arise in relation to their need to pursue a relationship with an important
attachment figure under sometimes intolerable circumstances.
In one custody-access case here in Toronto the
father is a very high functioning high profile professional. The parties have
two children. The older child is taken around the world by the father at access
and returned to the mother with all kinds of bizarre hair raising tales and
illnesses. In this case the older child has the diagnosis of Asperger’s Syndrome
and the father exhibits similar traits. Risk aggregates in these situations,
where there is both child and adult neurological impairment, and this knowledge
adds to the degree of the other parent’s moral distress. Just as disability
masquerades as high conflict in separation, so too does moral distress. 9 Father
does not return the child to a relaxed parent, but to a very anxious and
concerned one. Their “conflict” is intractable. They have spent over $600,000
litigating the parenting issues and little had changed.
While this father is not deliberately harming
the child, he consistently exercises poor judgment around safety, such that the
child is afraid and injured and ill upon return to the mother who in turn is
constantly struggling with a child who nightmares upon return and who resists
access.
This parent is not only harming the child, he
is also harming the mother with this behavior (see Child Contact and the
Unusual Parent Fam Law 2003) by causing her moral distress. From a legal
perspective this is a couple entrenched in post-divorce conflict. It would be
far better if they could be seen as struggling with some considerable ethical
issues that cry out for redress.
Wallerstein, in her extensive study on post
divorce adjustment (her findings are in The Unexpected Legacy of Divorce) asks
the question whether divorce is itself is problematic short and long term. Her
conclusion is that it is. But divorce does not happen in a vacuum.
The bigger question is whether there is
pathology in the family and whether that pathology makes for a worse outcome
when the family separates as opposed to when it remains intact. This is a very
complicated question. I venture that to the extent that on going post separation
conflict is driven by the pathology itself, and to the extent that children are
forced to fend for themselves in the face of that pathology (the other parent no
longer being there to act as a buffer) the answer is yes. Conflict does not have
a life of its own, but is an outgrowth of something.
Where there is access to parents with a range
of character logical problems such as personality disorders, delusional
disorders (see for example Thaddeus Ulzen and Russell Carpentier The Delusional
Parent and Multi-Systemic Family Issues Canadian Journal of Psychiatry 1997),
neurological Impairments (see Jennings Linehan and Jan Schloss in Who’s Minding
the Children? Child Contact and the Parent with Neurological Impairment
International Family Law, November 2003) or other significant mental or
emotional problems (see District Judge Mitchell Child Contact and the Unusual
Parent Family Law March 2003) there are going to be significant ethical issues
around access for all family members, including for involved children.
Currently access is freely granted to all but
the most severely compromised parents and the parties are left to struggle on
their own with the issues that inevitably arise week after week and that present
in the family law office as generic conflict.
Once upon a time in family law battered female
clients joked that when they called 911 for assistance during an assault, the
police would say “there’s nothing we can do Ma’m. Call us when he kills you.”
That was an ethical problem.
Domestic disputes are now seen in a very
different light than they were in the past, when domestic violence was perceived
as being a private matter between a man and his wife. Like wise, we need to
bring intractable access disputes out into the open, out of the sphere of the
private domestic dispute (a quibble between divorcing parents) and address the
underlying issues, especially where they revolve around child safety and
parental moral distress. Especially where there are significant ethical issues
at stake.
End Notes [1999] S.J. No. 817 (Sask.
C.A.) Q.L. If this sounds facetious it isn’t. Sociopathy simply does not present
much of the time. We ought all ask if we would like to share parenting with a
sociopath and if we had to, how would it look?
Too there is the concept in Japanese culture of
Oyako-Shinju (parent-child suicide) that is considered to be a beginning, a
spiritual journey that reunites parent and child. This is an historical
parenting choice in Japan that we see here as being a heinous crime. Oyako-Shinju
has featured in California family and criminal law. What is perceived as a most
heinous crime in the U.S has been seen as a solution to various family problems
in Japanese culture in the past. How does a new Japanese immigrant mother or a
Canadian or Japanese American woman view access? And we can see here how a
collaborative approach to family reorganization would be an improvement over
litigation in resolving these kinds of issues. Even if a Court were to order
that the epi pen be taken along the custodial parent would still face ethical
dilemmas which would appear in other areas of the access parents parenting,
because this parent is on the autistic spectrum and suffers from mind blindness
and weak central coherence. Maternal (parental) instinct may also play a role in
post-separation conflict at access. Anecdotal evidence suggests that parental
instinct is something requiring research in relation to post divorce adjustment
for parents and children.
See Jennings Linehan, S. Parenting Mediation in
the Family with Disability Resolve Magazine, Family Mediation Canada, Winter
2003 and
Jennings Linehan, S. Special Needs Practice
Issues for Ontario Mediators Solutions, Ontario Association of Family Mediation,
Spring 2003
See High Conflict and Asperger’s Syndrome
Sheila Jennings Linehan 2003 on www.mediate.com
Biography
Sheila Jennings Linehan is a lawyer and family court trained mediator.
She and her colleague Jan Schloss gave a workshop in June 2004 at the Ontario
Association of Children’s Aid Societies Conference called Parents with
Neurological Impairments. She has published several articles on separation with
parental disability including Asperger’s Syndrome and High Conflict.
Email:
sjennings@vif.com
Some
are the melody, some are the rhythm, some are the harmony