Confusing domestic violence for high conflict can pose significant risks to the family, something family law professionals need to be aware of and assess in their clients.
In family law, ‘high conflict’ often describes challenging relationships between parents. However, beneath this label there sometimes lurks a more sinister reality: domestic violence. People often think ‘high conflict’ means both parents are just fighting a lot. But sometimes, it’s actually one person hurting the other.
By not distinguishing between the two, family law and parenting experts may inadvertently put parties, including children, at risk. They might use interventions that aren’t suitable to address the real issues. Moreover, they may compromise best interest determinations for children. Failing to recognize and address domestic violence can lead to decisions that do not protect the well-being of the children involved.
Domestic Violence vs. High Conflict
Domestic violence situations are marked not just by aggression but by an imbalance of power. Some think of domestic violence as only physical, but it encompasses much more than that, including psychological, financial, sexual, legal, and coercive controlling abuse.
In family law, it can involve one party using delay tactics, or outright refusing to solve problems, particularly because it creates hardship for the other parent, such as financially or in accessing the children. The abuse may not be constant, but it is generally persistent, emotional damage to the victim while the perpetrator remains unharmed.
Furthermore, it is a myth to think that domestic violence ends when people separate. Post-separation abuse is common and can continue well beyond the separation. It can impact both the protective parent and children, and make co-parenting ineffective, if not impossible. This ongoing abuse can extend the trauma and stress experienced by everyone, perpetuating the cycle of harm long after separation.
Domestic abuse is not the same experience as high conflict. In high conflict scenarios, issues might arise from bidirectional disagreements – where both people contribute to the conflict. In domestic violence scenarios, aggression is usually unidirectional – where one person is creating the conflict. Domestic violence is not about reaching an agreement. Instead, the aggressor seeks to gain or maintain control, often resorting to threats, insults, and fear to achieve this. They aim not to solve a problem but to control, hurt, insult, or intimidate.
When we mistake domestic violence for mere ‘high conflict’, we jeopardize the safety and well-being of the involved parties, especially children.
In situations of domestic violence, is important to uncover who is doing what to whom and why. However, when we frame domestic violence as high conflict, this analysis is often missing. Instead, the misidentification leads to equally blaming both parties. We might also have an over simplified view that the two separated parents simply can’t put their hurt and anger behind them and get along for the sake of the children.
This distinction is crucial. By failing to recognize and address the insidious nature of domestic violence, professionals may inadvertently set up situations where the victim feels pressured to make agreements or take actions harmful to their safety and well-being.
Furthermore, there is a strong correlation between domestic violence and child maltreatment and neglect. By not properly identifying and addressing domestic violence, we may also be overlooking or underestimating the potential harm to children involved, both physically and emotionally.
When domestic violence is present, the risks to children are many, including:
- directly as targets of violence
- indirectly through witnessing abuse
- from the consequences of the protective and safe caregiver suffering from financial abuse, meaning limited resources and inadequate support
Additionally, these children are at risk of fear and anxiety, delayed decisions crucial for their well-being, and overall destabilization, which further compounds the threats to their safety and emotional health.
These high risks reinforce how important it is for family law and parenting professionals to be especially vigilant and informed in their interventions.
Bridging the Knowledge Gap
The essence of the law is to offer fairness, guidance, and protection. It is imperative that family law interventions truly reflect the diverse challenges families face. Reinforcing this notion, the Divorce Act explicitly names domestic violence as a consideration in family law. This legislative acknowledgment underscores the urgency and importance of recognizing and addressing domestic violence in family law proceedings.
Common dispute resolution approaches and interventions include mediation, mediation/arbitration, parenting coordination, co-parenting counseling, voice of the child reports, parenting time/parenting responsibility assessments. These all hold value. However, without a keen awareness and understanding of domestic violence and appropriate adaptations and practices in place, their effectiveness can be critically undermined and put children and protective parents at risk.
How Professionals Should Respond
First, family law professionals should not only screen for family violence at the outset but throughout the life of their files. Situations evolve and change. What might not be apparent initially can become evident over time.
In mediation, mediators can take a trauma-informed approach to the mediation if domestic violence is an issue. This approach acknowledges the unique challenges survivors face and adapts the process to support their needs. Some potential strategies and accommodations for trauma-informed mediation include:
- each party meeting separately with the mediator
- meeting via video platforms
- recognizing when mediation isn’t suitable
- offering aids, such as pre-written scripts, for victims to help them communicate their needs during the session. For example, “I need a moment” for moments of overwhelm.
- breaking sessions into smaller segments
- allowing practice sessions using all tools and signals to prepare the victim
- allowing a victim to bring a trusted individual for support
- using discrete signals, such as picking up a red pen, to signal that a break is needed
- suggesting the parties consult with others to get support and have time to process before committing to final decisions
While these strategies are tailored for mediation, they can also be beneficial in other family law processes, such as parenting coordination. Adopting a trauma-informed approach ensures that victims not only feel understood but also empowered and safe throughout the process.
Helping Individuals Choose the Right Intervention
If you are concerned about domestic violence, it’s important to know what to look for in family law interventions.
Choose family law professionals trained in and knowledgeable about domestic violence. For example, choose a family lawyer who conducts regular screenings for family violence.
Ensure the chosen interventions prioritize yours and your children’s safety, both physical and emotional. Do not be afraid to ask potential parenting experts to share about their screening practices and training in domestic violence. Parenting experts should let you know what guidelines they adhere to and what tools they use to assess for domestic violence and how they adjust their approach as needed.
Towards a Safe System
Recognizing the nuances between ‘high conflict’ and domestic violence is vital for both professionals and individuals navigating family law. Through consistent screenings and tailored interventions and by empowering clients with knowledge, we move closer to a system that genuinely protects children and their best interest. Continuous education on domestic violence is a must for professionals, given its often hidden, complex, evolving nature and the many myths surrounding it.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.