High-conflict Separation and Divorce: Options for Consideration

2004-FCY-1E

4.  HIGH-CONFLICT DIVORCE: THEORY AND EXTERNAL MARKERS

4.1  Theory

Kressel et al. (1980), on analyzing nine completed mediation cases, discerned four distinctive patterns by which couples reached the divorce decision. These were the enmeshed, autistic, direct and disengaged patterns of divorce decision-making. This classification, in turn, was based on three interrelated dimensions: the degree of ambivalence towards the relationship, the frequency and openness of communication about the possibility of divorce, and the level and overtness of the conflict with which the decision was reached. Extremely high levels of conflict, communication and ambivalence about the divorce decision hallmarked the enmeshed pattern. The parties debated the pros and cons of divorce, often bitterly, agreed to divorce, and then changed their minds. They were unable to "let go." Often, they approached mediation with grave reservations and gave themselves grudgingly to the process.

The autistic pattern was characterized by the absence of communication and overt conflict about the possibility of divorce. The direct conflict pattern was characterized by relatively high levels of overt conflict (although not as intense as that for enmeshed couples) as well as frequent and open communication about the possibility of divorce. A low level of ambivalence about ending the marriage characterized the disengaged conflict pattern. The authors argued that mediation might work well with direct and disengaged couples. For these two types of couples, there was an overall congruence of goals: to arrive at an equitable settlement. This was less successful with enmeshed and autistic types, because there appeared to be a fundamental divergence among the participants.

One of the foremost experts on high-conflict divorce is Dr. Janet R. Johnston. In a book that she co-authored with Linda Campbell, Impasses of Divorce, she examined conflict among a group of 80 divorcing families in California who were unable to reach agreements or were still disputing despite a mediated settlement or court order (Johnston and Campbell, 1988). Two thirds of the families were engaged in a legal dispute over custody and access, while the remaining one third were disputing visitation. Most of these parents felt a pervading sense of distrust or unease about the other parent's capacity to care for the child. They also complained that the other parent refused to listen, talk, share or coordinate plans for the children. Many alleged outright neglect. Six cases involved serious allegations of sexual molestation and physical abuse.

The authors analyzed how the parties disputed. All the families were litigating, since mediators or judges had referred them. Outside the court, the dispute took various forms, ranging from resistance to the settlement of divorce matters, fear and avoidance of each other-along with refusals to communicate, personal distrust, and bitter acrimony-to angry confrontation, including threats and explosive violence. Physical aggression had occurred between three quarters of the parents during the preceding twelve months, as measured by the Strauss Conflict Tactics Scale. More than four fifths had been violent in the past. On the average, parents were physically aggressive towards each other once per month, and their children were present on two thirds of these occasions. However, the most common form of active disputing was verbal abuse: insulting, belittling, and demeaning interchanges that occurred on average once per week, often on the telephone or at the time of transfer of the child from one home to another. Less than one third of the families had been separated within the previous twelve months and almost one half had been separated more than two years. Only 29 percent had been able to obtain a divorce decree. Asking why these parents could not settle their disputes and make stable post-divorce plans for the children, the authors developed the concept of the divorce-transition impasse. The inability to resolve disputes is seen as symptomatic of the family's resistance to change. Where there are chronic disputes, the normal trajectory of change and recovery that occurs during divorce is stymied. "The parents are unable to make use of the divorce to resolve issues within or between themselves and are frozen in the transition. In effect, the form of the custody dispute becomes their new pattern of relationship" (Johnston and Campbell, 1998: 7-12).

These impasses occur at three levels: the external, the interactional, and the intrapsychic or internal. At the external level, the dispute may be fuelled by significant others (extended kin, new partners or helping professionals) who have formed coalitions or alliances with the divorcing parties and legitimized their claims. At the interactional level, the dispute can either be a continuation of a conflictual relationship or the product of a traumatic or ambivalent separation of parents. At the intrapsychic level, disputes may serve to manage intolerable feelings engendered by the divorce (humiliation, sadness, helplessness and guilt) in psychologically vulnerable parents (Johnston and Campbell, 1988: 12; Johnston and Roseby, 1997: 5-22).

The authors constructed a different form of mediation approach to help these high-conflict families, combining a therapeutic and counselling effort in order to address the parents' motivation to fight, and to counsel them on the needs of their children:

While the need for premediation education, counseling, and therapy for high-conflict families has been acknowledged by a number of mediators, all have emphasized that it should be done in a separate setting, apart from the actual negotiations. We disagree and see counseling and mediation of a settlement for high-conflict families as the phases of one process. The understanding of the impasse, the parents' personality styles and the children's needs, gained in the counseling phase is invaluable for choosing negotiation strategies and building the actual agreement. Moreover, the process is better coordinated and expedited by having the same counselor-mediator in both phases (Johnston and Campbell, 1988: 198-199).

Johnston (1994) explained that conflict in divorce has three dimensions: the domain dimension, the tactics dimension, and the attitudinal dimension. The domain dimension refers to disagreements over divorce issues, such as financial support, property division, custody and access to children. The tactics dimension is the manner in which divorcing couples informally try to resolve disagreements, either by avoiding each other and the issues, or by verbal reasoning, verbal aggression, physical coercion and physical aggression. It can also refer to the way that divorce disputes are normally resolved by the use of attorney negotiation, mediation, litigation, or arbitration by a judge. The attitudinal dimension refers to the degree of negative emotional feeling or hostility directed by divorcing parties toward each other, which may be covertly or overtly expressed. The problem of measuring incidence of conflict is complicated further by the fact that one party may perceive a specific domain of conflict, but not the other. The duration and developing pattern of each form of conflict is relevant to its characterization as either normal or pathological. For instance, higher levels of most types of divorce conflict are expected and relatively common at the time of marital separation and filing for divorce, and until the issuance of the final decree. On the other hand, post-decree divorce conflicts are sometimes considered to be intractable and indicative of pre-existing individual and family dysfunction.

One of the studies reviewed by Johnston (1994) was that of Maccoby and Mnookin (1992), who conducted a study of 1,124 families with 1,875 children recruited from divorce filings in two California counties. These researchers analyzed, in part, the amount of legal conflict over custody and visitation disputes. They estimated that 10 percent of families experienced "substantial" legal conflict and that 15 percent experienced a greater degree of "intense" legal conflict. They identified three types of co-parenting patterns three to four years after separation, generated by the presence or absence of discourse between ex-spouses (frequent arguments, undermining and sabotage of each other's roles as parents) and the presence or absence of frequent attempts to communicate and coordinate their efforts as parents. These three patterns were high communication and low discord (called cooperative parenting); low communication and low discord (called disengaged parenting); and low communication and high discord (called conflicted parenting). The latter occurred in 24 percent of the cases. Over the three-year period, it was unlikely for conflicted parents to become cooperative. In sum, using different measures (legal conflict, hostility and conflicted co-parenting), their data indicated that one quarter of divorces were highly conflicted three and a half years after separation. Pervasive distrust about the other parent's ability to care adequately for their child and discrepancies in perceptions about parenting practices generally typified the couples likely to be highly disputatious.

Johnston (1994) summarized other studies, including her own, that showed a high level of domestic violence in highly conflicted families. She argued that early clinical observations suggests that individuals in high-conflict divorces might be more likely to have severe psychopathology, personality disorders and substance abuse problems. However, the critical question raised by these studies was whether the manifestations of psychopathology represented ongoing personality or emotional disorders or whether they were probable reactions to severe stress, including that from divorce and legal disputes. Analyzing the literature concerning parental conflict on children, Johnston concluded that inter-parental hostility and physical aggression are moderately associated with more behavioural problems, emotional difficulties and reduced social competence in children, compared to non-conflictual families. In general, children who are exposed to physical aggression between parents are more symptomatic than those who experience non-violent inter-parental discord. This was even more pronounced in children who are physically abused.

Johnston (1994) tentatively concluded, while acknowledging the limitations of these studies, that inter-parental conflict after divorce (for example, verbal and physical aggression, overt hostility and distrust) and the custodial parent's emotional distress are jointly predictive of more problematic parent-child relationships and greater child maladjustment. Court-ordered joint physical custody and frequent visitation arrangements tend to be associated with poorer child outcomes, especially for girls. However, she cautioned that this apparent association between joint custody/frequent access and poorer child adjustment appears to be confined to the small proportion of families (about one tenth) of all divorces that are considered high conflict.

In assessing conflict-resolution procedures and programs, Johnston pointed out that mediation is a problematic remedy to high-conflict divorce cases. Mediation is the use of a neutral third party in a confidential setting to help disputing parties define issues and negotiate and bargain differences and alternatives. The assumption is that the mediator can contain and deflect the emotional conflicts of the divorcing couple and help them to become rational, focussed and goal-oriented. She cautioned that it is "... important to note, however, that the 'failures of mediation' have all the characteristics of high-conflict divorce" (Johnston, 1994: 176). She explains:

... it is difficult for families to arrive at some consensus when they have highly divergent perceptions of their children's needs and a pervasive distrust of each other's capacity to provide a secure environment. In sum, high-conflict divorcing families have often been identified by their failure to make effective use of mediation methods that rely upon a rational decision-making process (Johnston, 1994: 176).

Johnston argued that the more appropriate intervention in high-conflict divorce cases requires gaining some understanding of why the parents are locked into chronic disputes. Based on such understanding, therapists can devise focussed interventions aimed at the impasse, which helps the parents make more rational decisions. Moreover, therapists can help parents focus on the needs of their children apart from their own psychological agendas. This approach is called "therapeutic mediation" and has been most highly developed as a method called "impasse-directed mediation." This dispute resolution involves both parents and their children in a relatively brief, confidential intervention (15-25 hours). The strategy is two-pronged. On the one hand, parents are helped to develop some insight into their psychological impasse. On the other hand, parents are educated about the effects of their conflict on their children and counselled about how to protect their children from spousal disputes.

She presented key principles to inform social policy on minimizing high-conflict disputes, including that:

... custody arrangements should allow parents to disengage from their conflict with each other and develop parallel and separate parenting relationships with their children, governed by an explicit contract that determines the access plan. A clearly specified regular visitation program is crucial, and the need for shared decision-making and direct communication should be kept to a minimum. This fourth principle implies, therefore, that joint legal and joint physical custody schedules which require careful coordination of the child's social, academic and extracurricular activities are generally inappropriate for this special subpopulation of divorcing families (Johnston, 1994: 179).

Johnston and Roseby (1997: 5) reviewed the work in this field:

In sum, high-conflict parents are identified by multiple, overlapping criteria: high rates of litigation and relitigation, high degrees of anger and mistrust, incidents of verbal abuse, intermittent physical aggression, and ongoing difficulty in communicating about and cooperating over the care of their children at least two to three years following their separation. Probably most characteristic of this population of "failed divorces" is that these parents have difficulty focusing on their children's needs as separate from their own and cannot protect their children from their own emotional distress and anger, or from their ongoing disputes with each other.

... The most serious threat... is... that these children bear an acutely heightened risk of repeating the cycle of conflicted and abusive relationships as they grow up and try to form families of their own.

4.2  External Markers of High Conflict

Johnston's work did not focus exclusively on the personal characteristics of the divorcing couples themselves to try to understand why they engage in conflict. She also argued that the actions of other persons-those engaged by the justice system itself-could fuel the conflict. Among these are attorneys who promote conflict between the divorcing parties:

Attorneys in particular have long been implicated for contributing to rather than resolving disputes, because of their advocacy role within an adversarial judicial system. Advising their clients not to talk to the other spouse, making extreme demands to increase the bargaining advantage, and filing motions that characterize the other parent in a negative light are all typical examples. Needing to show evidence of neglect, abuse, physical violence, or emotional or mental incompetence to win their client's case, attorneys compose documents that are a public record of charges and countercharges, citing the unhappy incidents and separation-engendered desperate behaviors of the emotionally vulnerable parties, often out of context. The consequent public shame, guilt, and fury at being so misrepresented motivates the other party's compelling need to set the record straight in costly litigation (Johnston and Roseby, 1997: 9).

Another component is the role of mental health professionals:

Some therapists, who see only one of the parties to the divorce conflict, encourage uncompromising stands, reify distorted views of the other parent, write recommendations, and even testify on behalf of their adult client with little or no understanding of the client's needs, the other parent's position, or the couple or family dynamics. Unfortunately, some courts are willing to give credence to this kind of "expert testimony." In some high-profile cases, the parents' mental health therapists squabble among themselves, playing out the parental dispute in a community or court arena (Johnston and Roseby, 1997: 9-10).

In this regard, Turkat (1993) pointed out that, in the context of mental health experts' custody recommendations, "for every competent professional evaluator, there may be many more incompetent ones." He argued that the ideal mental health professional for doing a custody evaluation should have significant training in the area of child development, training in psychopathology, years of experience as a practicing clinician, and should also make it clear to the court that his or her interpretations or recommendations are subject to error. Moreover, given that even the most objective impartial examiner may be subject to bias, one who is a "hired gun" for one of the parties to a dispute should not be allowed to give a custody recommendation.

Yet another player in fuelling the conflict is the court:

The role of the court itself can trap a family in a divorce time warp, not so much because of unwise decisions but because of the manner in which it renders its decisions... Its authority and judgment ... can have powerful symbolic meaning for clients who are emotionally distressed and dependent on others for their self-esteem. Not only is the court considered by many as a forum where the private marital fight is exposed to humiliating public scrutiny, but it is potentially invested by its clients with a quasi-divine moral authority.

From the client's perspective, the judge's decrees become dramatizations of who is right and who is wrong... It is especially important, if legal counsel or the judge suspects the parties are in court with a psychological agenda of obtaining a moral judgment, that court orders be clear and precise as to the basis for the decision. If they are unclear, they may constitute a permanent public record of inordinate shame and condemnation for some people (Johnston and Roseby, 1997: 11).

A recent report and action plan from an international conference on high-conflict divorce reiterated this position. High-conflict custody cases can emanate from all the participants in a custody dispute. This includes not just parents but also "attorneys whose representation of their clients adds additional and unnecessary conflict to proceedings; mental health professionals whose interactions with parents, children, attorneys or the court system exacerbates the conflict; or court systems in which procedures, delays or errors cause unfairness, frustration or facilitate the continuation of the conflict." (American Bar Association, 2000) This report recognized that mental health professionals, lawyers and judges have the greatest power to influence the conduct of high-conflict custody cases. Therefore, they should bear primary responsibility for preventing or reducing conflict in such cases.

Another external indicator of high conflict between spouses is domestic violence. Johnston and Roseby, in their book In the Name of the Child, (1997: 25-45), devote a chapter to an analysis of five types of domestic violence among divorcing families disputing custody. These types are ongoing/episodic battering by males, female-initiated violence, male controlling interactive violence, separation-engendered divorce trauma, and psychotic or paranoid reactions. Ongoing/episodic male violence seems to originate from the man and his chauvinistic attitudes. The man almost always initiates the violence, which is often precipitated by drug and alcohol abuse. Female-initiated violence seems to result from internal stress that causes the woman to become furiously angry in response to the spouse's passivity. Male controlling interactive violence escalates from mutual insults into physical struggles. The man responds by physically dominating and overpowering the woman. Separation-engendered and post-divorce trauma is marked by uncharacteristic acts of violence related to the separation or such stressful post-divorce events as disputes over custody. Psychotic and paranoid reactions are violent acts generated by disordered thinking and distortions of reality that involve paranoid conspiracy theories.

The authors argue that no single policy or treatment intervention can suffice for all domestic violence families. For example, sole or joint residential arrangements should never be contemplated if a father is engaged in ongoing or episodic battering. Visitation with the father in such cases should be supervised or suspended. Unsupervised visits should be contemplated only upon the abusive father's cessation of violence and his successful completion of an appropriate treatment program. For some other types of domestic violence, it may be, that unsupervised visits can work, provided they are clearly structured. In general, however, the best prognosis for shared parenting is in family situations with no history of physical abuse in the marriage.

As Stewart (2001: 20) pointed out in his literature review, however, the five types of domestic violence described above can be problematic:

This list is designed to help clinicians differentiate between different types of divorce-related violence and is a tool in assessing the severity of violence when considering access issues. This type of differentiation has resulted in significant debate among professionals with some arguing that such distinctions undermine current initiatives to take all forms of domestic violence seriously.

One other thing that may fuel conflict is the decrease in funding of Legal Aid over the years. For example, in 1999, the Chief Justice of the Family Court of Australia pointed out that the limited availability of Legal Aid had been particularly damaging in the area of family law. He stated:

At a time of turmoil in people's lives, denial of legal aid puts additional pressures not just on the unrepresented person, but also on the other parties in the dispute, their legal representatives and on the Court. It inevitably increases the opportunity for delay and reduces settlement opportunities. For some, the sense of injustice that is caused becomes expressed against the former partner or their children, or the latter become pawns in the process. While violence is the most extreme manifestation, we also see heightened obstructionism and unwillingness to comply with orders or other post-separation agreements.... Before a matter goes to hearing, when opportunities to settle disputes often present themselves, it is understandable that individuals with a high level of animosity towards each other are unable to negotiate and possibly find a solution. There is no objective advice available to them (Nicholson, 1999b: 1-2).

While the Chief Justice's remarks may well be speculative, recent evidence supports the view that a lack of Legal Aid funding can frustrate the efficiency of court services. A recent study of litigants in person before the Family Court of Australia found that most litigants in person do not have legal representation because they cannot afford it. Moreover, just over one half of the litigants in the study sample were denied Legal Aid because of changes made to the Legal Aid guidelines in 1997. In addition, a significant minority in the sample had not bothered to apply for Legal Aid, because they had been told they were ineligible. Litigants in person were more likely than the population as a whole to have limited formal education, limited income and assets, and to have no paid employment. Litigants in person were disproportionately concentrated in children's matters as opposed to property matters.

Dewar et al., (2000) pointed out that such litigants have many needs: for information, support services, court procedures, advice and support. Judicial officers and registry staff experienced high levels of stress and frustration when dealing with litigants in person, because of the litigant's lack of legal and procedural knowledge as well as the difficulty of holding a fair balance between the represented and unrepresented parties. Although matters involving an unrepresented litigant have shorter disposition times than when the parties are represented, service providers almost unanimously agreed that so long as they remained in the system, unrepresented litigants were more demanding of the time of the other parties and their legal advisors (Dewar et al., 2000).[1]

In addition, a recent review of the Australian Family Law Reform Act 1995 concluded that many applications brought by a non-resident parent against the resident parent for allegedly breaching a parenting order made by the Court were without merit and were made in order to harass the resident parent. In the majority of these unmeritorious cases, the father was unrepresented. This showed the importance of the gate-keeping role played by lawyers in keeping trivial complaints out of the system (Rhoades et al., 2000: 9).

The implication of these findings, in the context of high-conflict divorce, is that the unrepresented litigant is likely to cause delay in the court system, creating more opportunity for conflict to arise. Moreover, the lack of financial resources of the unrepresented party would contrast sharply with the financial resources available to a wealthier spouse, creating a power imbalance that could fuel more conflict.

Arguably, however, the most used typology of conflict within marriage is the Conflict Assessment Scale developed by Garrity and Baris (1994) in their book Caught in the Middle: Protecting the Children of High-Conflict Divorce. This scale sets out five levels of conflict, ranging from minimal to severe, as follows:

  1. Minimal

    • Cooperative parenting.
    • Ability to separate children's needs from own needs.
    • Can validate importance of other parent.
    • Can affirm competency of other parent.
    • Conflict is resolved between the adults using only occasional expressions of anger.
    • Negative emotions quickly brought under control.

  2. Mild

    • Occasionally berates other parent in front of child.
    • Occasional verbal quarrelling in front of children.
    • Questioning child about personal matters in the life of other parent.
    • Occasional attempts to form a coalition with child against other parent.

  3. Moderate

    • Verbal abuse with no threat or history of physical violence.
    • Loud quarrelling.
    • Denigration of other parent.
    • Threatens to limit access of other parent.
    • Threats of litigation.
    • Ongoing attempts to form a coalition with child against other parent around isolated issues.

  4. Moderately Severe

    • Child is not directly endangered, but parents endanger each other.
    • Threatening violence.
    • Slamming doors, throwing things.
    • Verbally threatening harm or kidnapping.
    • Continual litigation.
    • Attempts to form a permanent or standing coalition with child against other parent (alienation syndrome).
    • Child is experiencing emotional endangerment.

  5. Severe

    • Endangerment by physical or sexual abuse.
    • Drug or alcohol abuse to point of impairment.
    • Severe psychological pathology.

Garrity and Baris (1994: 42-43) developed this scale of conflict using their extensive clinical experience with divorcing families and children experiencing inter-parental conflict, as well as research literature on fighting and violence in divorced and intact families. They caution that the scale is not statistically valid or reliable, but suggested that it may be useful as a guideline in formulating plans for visitation or other matters.

Stewart (2001: 20), in his literature review, talked to a number of professionals about how to define high-conflict divorce. Dr. Eric Hood, a psychiatrist involved with court-ordered family assessments at the Clarke Institute for more than 20 years, was skeptical of attempts to identify criteria to define high-conflict divorce. He viewed this as an attempt by mental health professionals to appear scientific when they had to appear in court to defend their reports. He noted, however, three external markers that indicate settlement problems: several changes in legal counsel, which may indicate that the client cannot take advice; the number of times a case has gone to court; and the overall time it takes for a case to be settled. Professor Nicholas Bala of Queen's Law School, was also wary of establishing fixed criteria for high-conflict divorce, because it could lead to a labelling effect that would limit alternatives for intervention. Professor Bala argued instead that a range of interventions is necessary for the entire divorced population, including counselling and therapeutic resources available for parents and children; educational programs that teach parents and members of extended families about the hazards of divorce and conflict to children; a case management system by which one judge assumes judicial control for each case from start to finish; and supervised access and exchange programs when there is a history of violence.

In the state of Idaho in the United States, the Idaho Protocol for judges in high-conflict divorce cases states that a high-conflict case is one

... on a continuum where parental conflict is anywhere from (1) verbal abuse with no threat or history of physical violence, threatening to limit access of other parent, threats of litigation, ongoing attempts to form a coalition with child against other parent around isolated issues to (2) endangerment by physical or sexual abuse, drug or alcohol abuse, severe psychological pathology (Brandt, 1998: 33).

Markers for high-conflict divorce in this Protocol include petitions for temporary custody; protection petitions such as child protection and domestic violence orders; family dysfunction such as substance abuse; changes in attorneys; a child's refusal to visit a parent; and a parent's inability to separate a child's needs from the parent's needs. Another marker is divorce cases involving children from birth to age three, who warrant special scrutiny because of the extreme risk of psychological damage to these children of divorce (Brandt, 1998: 33).

An excellent Oregon study on approaches to high-conflict divorce in the United States advised that the Fulton County Family Division in Georgia uses an informal method of detecting high-conflict divorce by looking at the following factors: the presence of more than one child; younger children, which imply the potential for greater court involvement; intimate involvement of the extended family; child abuse; trauma; and whether one party was opposed to the divorce. Garrity and Baris's Conflict Assessment Scale was the tool of choice in Vermont and Idaho (Sydlik and Phalan, 1999: 2).

There are problems with many of the definitions of high conflict described above. As Stewart (2001: 43) pointed out in his literature review, while a number of clinical and empirical studies are clear about their conclusions regarding the danger to children of exposure to high conflict between parents

... they are vague and inconsistent about how to define high-conflict. One of the difficulties in these studies is the lack of baseline measures for the normal level of conflict one would expect in most divorcing families. Without an established baseline, it is impossible to accurately determine the exact level of conflict that can be defined as "high-conflict".

Stewart (2001: 43) therefore recommended:

In order to develop an accurate measure of what can be defined as high conflict, further empirical research is required. Such research, using large sample groups, should begin by establishing baseline measures for the amount of conflict that normally exists in divorcing families as compared to intact families. Once this baseline is established, a second baseline of conflict levels can be determined for families characterized by the external and internal elements mentioned below.

Stewart (2001) argued that a high/low-conflict typology is more useful to practitioners than models that identify several levels of conflict. He therefore provided a model for high and low conflict that sets out, for each typology, external markers, individual and relationship characteristics, referrals to community resources, and key elements of the parenting plan. For high-conflict divorces, the typology of external markers and relationship characteristics are as follows:

  1. External markers

    • Criminal convictions.
    • Involvement of child welfare agencies in the dispute.
    • Several or frequent changes in lawyers.
    • The number of times a case goes to court.
    • The overall length of time it takes for the case to settle.
    • A large amount of collected affidavit material.
    • History of access denial.

  2. Individual and relationship characteristics

    • History of mental health difficulties, including depression, anger, withdrawal and non-communicative behaviour.
    • History of violent and abusive behaviour.
    • A tendency to vilify the other parent.
    • Inability to separate the parent's needs from the child's needs.
    • Rigid and inflexible thinking about relationships and child development.
    • High degree of distrust.
    • A tendency toward enmeshment rather than autonomy.
    • A poor sense of boundaries.
    • A high degree of competitiveness in the marriage and in the separation.
    • The amount of verbal and physical aggression between the parents.
    • A tendency to involve the children in disputes.
    • A pattern of alienating the child from the other parent.

For the low conflict typology, the external markers and relationship characteristics are as follows:

  1. External markers

    • Ongoing disputes of items of daily routine.
    • Use of supportive family and friendship network to limit conflict.
    • Use of lawyers as last resort.
    • Few court appearances.
    • No criminal activity linked to custody dispute.
    • No history of violence.

  2. Individual and relationship characteristics

    • Ability to separate child's needs from parents' needs.
    • Ability to validate the importance of the other parent.
    • Conflict is resolved with only occasional expressions of anger.
    • Negative emotions brought quickly under control.
    • Ability to not say certain things in anger.
    • Pattern of protecting children from angry episodes.
    • Child functioning improves after a period of adjustment.
    • Both parents can tolerate differences.
    • Ability to cooperate on child-related issues.
    • A resolution of personal issues.

Stewart (2001: 47) added that, beyond its practical application for developing parenting plans, trying to define criteria that contribute to high-conflict divorce situations might be of little use. The main difficulty with the adjective "high" is that it implies a specific distinction among various levels of conflict, when in fact conflict in divorce may be better thought of as a continuum that includes specific events and behaviours in a family leading up to and follow the decision to separate; the family and community resources available to help the parents and children adjust to changes; and the children's internal responses to these challenges.

For the purpose of this study, this paper generally accepts most of Stewart's external markers for distinguishing high-conflict cases from low conflict divorce cases: involvement of child welfare agencies in the dispute, several or frequent changes in lawyers, the number of times a case goes to court, the length of time it takes for the case to be settled, a large amount of collected affidavit material, and a history of access denial. However, one change is proposed to Stewart's list: domestic violence and sexual offences in place of criminal conviction. Any criminal conviction is too broad a criterion to qualify as a marker of high-conflict divorce. For example, someone convicted for simple possession of marijuana does not, by that fact alone, taint his or her divorce proceedings with the risk of high conflict. A more precise marker is needed, one from which a reasonable inference can be made that, by the fact of, or possibly allegation of, criminal misconduct, there is a reasonable likelihood that relations among the members of the family may be placed in conflict. For this reason, criminal misconduct in the form of a sexual offence or an act of domestic violence is selected as a marker.