A Cautionary Tale:
How Not to Run Your Separation and Custody Battle
Los Angeles Family Law Mediator Forrest S. Mosten recently shared this
newsworthy trial court opinion with me, and it is making the rounds among
listservs for Collaborative Lawyers who have an abiding desire to help
others avoid exactly the sorts of behavior that certain high-conflict
families generate, as are illustrated here to such a degree that a father
has lost all contact with his daughter. I find that Christmas for some
folks becomes a battling holiday, and I urge you to undertake a different
path beginning today for your sake and those who depend upon you. This
is a wonderful example of what to avoid at all costs.
On November 29, 2010, Judge J.W. Quinn issued a thoughtful and stinging
rebuke of two parents behaving abominably in their dissolution and custody
battle. This unfortunate family's case is entitled McQuat vs. McQuat.
The court's ruling begins:
"Paging Dr. Freud. Paging Dr. Freud.
* * * This is yet another case that reveals the ineffectiveness of Family
Court in a bitter custody/access dispute, where the parties require therapeutic
intervention rather than legal attention. Here, a husband and wife have
been marinating in a mutual hatred so intense as to surely amount to a
personality disorder requiring treatment....
... [I]t is not surprising that Larry and Catherine are having problems,
serious problems, regarding the custody of, and access to, their children.
The source of the difficulties is hatred: a hardened, harmful, high-octane
hatred. Larry and Catherine hate each other, as do Larry and Sam. This
hatred has raged unabated since the date of separation. Consequently,
the likelihood of an amicable resolution is laughable (hatred devours
reason); and, a satisfactory legal solution is impossible (hatred has
no legal remedy)."
The decision details allegations of multiple death threats between the
parents, between the parents' relatives and the other parent, between
the new spouses and the other parent, changed locks on the residence,
assault by Van, interferences with visitation, interrogation of children
about the other parent, threats of jail, and a stream of abusive texts
and phone calls, arguments that the children should be separated and divided
between the parents, alienating behaviors even after court mandated counseling
sessions, and more.
The court found the mother's behavior to be the more problematic of
the two - "Had [mother] fulfilled her dual parental duty to foster
and encourage access between [dad] and [the child] and not to speak disparagingly
of him in the presence of [the child], I am confident that this case would
have unfolded differently." By the time of the trial the 13 year
old daughter was so alienated from her father that the Court felt helpless
to devise any remedy to repair the damage. It made the following findings:
"(1) The alienation was not present before Larry and Catherine separated;
(2) This is not a case where Taylor [13 year old daughter] has weighed
the good and bad attributes of her father and found him, on balance, to
be parentally deficient: she sees Larry as all bad - there is no ambivalence
to her feelings; she is not disguising her true feelings; (3) Larry, although
well-intentioned, is an inept father, who has not taken steps to identify,
and fix, his shortcomings as a parent; nevertheless, the utter rejection
of him by Taylor is disproportionate, unfair and unwarranted; (4) . .
. Taylor has aligned herself with Catherine whose hate for Larry is palpable;
the battle lines are clearly drawn and Taylor knows the side that she
wants to be on; (5) I am unable to think of anything that Larry can do
to quickly repair the damage in his relationship with Taylor; and, if
I could, I have doubts that he has the skill-sets to pull it off; (6)
I did not hear evidence of a single instance of Taylor, since separation,
expressing love or affection for Larry; (7) Although children are often
required by their parents to do things that they do not want to do, obligating
Taylor to visit her father or to engage in counseling is considerably
more complicated than insisting that she do her homework or go to the
dentist; (8) The history of the parties is such that there is no reason
to think they would meaningfully take part in, or benefit from, therapy
or counseling; (9) While it is Catherine's duty to encourage and support
a relationship between Taylor and Larry, that duty has been breached too
severely to be remedied by the court; (10) It is not realistic to expect
that the parties have the incentive and finances to engage in the extensive
therapy and counseling that are needed; (11) Depriving Catherine of custody
(sometimes an appropriate way of dealing with an alienating parent) would
not benefit Taylor at this point.
It is my view, sadly, that the alienation here is so severe that it is
in the best interests of Taylor not to order or enforce access by Larry.
If access happens, fine.
Without professional help, Larry is incapable of addressing the breakdown
in his relationship with Taylor. Although, as I have said, well-intentioned,
he is an ineffective parent and, without counseling and other assistance,
he will remain ineffective. While Catherine, aided and abetted by Sam,
initiated the alienation of father and daughter, Larry has not improved
the situation. But, I emphasize the fundamental fact that Catherine's
conduct is the sine qua non of the alienation.
Absent counseling, matters will worsen, not improve. No practical purpose
would be served if the court were to decree a schedule of counseling for
the parties and the children. The hate and psychological damage that now
prevail would require years of comprehensive counseling to undo. The legal
system does not have the resources to monitor a schedule of counseling
(nor should it do so). The function of Family Court is not to change people,
but to dispose of their disputes at a given point in time. I preside over
a court, not a church.
Larry might consider some common-sense steps, such as cards, letters or
gifts, to show that he is receptive to a relationship with Taylor should
she have a change of heart. However, he would be wise to have those steps
independently vetted by a responsible person (preferably, a professional
in the child-psychology or family-counseling field)."
I often write about divorce insanity, and how reactivity and anger when
relationships end sometimes disintegrates into a form of mutual trance
that is humiliating to the parties and harmful to their children. It takes
on a life of its own, and at its worse seems impossible to stop until
it collides with the minimal standards that courts and governments impose
upon families; even then that collision at best results in a court imposed
outcome where much decision-making is stripped from the parents, and of
course government cannot follow the parties home once they leave the courthouse.
The conflict becomes a matter of public record, visible for all to see
including strangers like us.
This case is a strong argument in favor of mediation or collaborative
divorce, although the McQuats evidently were not likely candidates for
such processes (ironically, they had a settlement agreement that called
for mediation and yet both chose to ignore that promise).
I say "evidently" because I wonder whether their journey might
have been redirected had they or someone intervened early on - their mediation
provision offered that opportunity (although the husband challenged the
entire agreement and the Court was first required to decide whether to
set it aside before addressing whether mediation was enforceable). Judge
Quinn pointedly found that "[t]he alienation was not present before
Larry and Catherine separated." I see this is a clear statement that
the parties' circumstances by the time of trial was a consequence
of the post-separation and litigation experience, and not something that
was otherwise inevitable had anyone considered de-escalating early on.
Their case is on the far end of the spectrum of dysfunction. Possibly
you will read something here that will help you dial back similar conduct
or impulses that the hurt part of you is considering, and to ring a bell
for you that might cause you to consider an alternate route before your
divorce begins to escalate. Perhaps you know someone in acute divorce
crisis, and this cautionary tale will help motivate you to support them
by encouraging them to behave differently than what their emotional upset
drives them to do. Sadly for the McQuats, it appears their family members
only served as boosters for their bad behavior. This family looks to be
irretrievably broken, and while it is never too late there is a mountain
to climb that was once merely a hill.
Thurman Arnold, CFLS
December 18, 2010