Published in 2004 in N. J. Cameron Collaborative Practice: Deepening the Dialogue by Continuing Legal Education, British Columbia
As the legal community moves from the adversarial process of traditional law into the ‘therapeutic territory’ of collaborative processes, the treatment of children’s issues can likewise move in a more collaborative and therapeutic direction. Historically, children’s issues through separation and divorce have been dealt with in one of two ways.
Traditional Therapeutic Practice
In traditional therapeutic practice, therapists provide a wide range of therapeutic services to families experiencing separation and divorce such as: therapeutic assessment, parent education and therapeutic services to adults and children. Therapists work with children to help them express and understand the strong emotions that parental separation can bring. Therapists can also help the children voice their concerns to their parents, either through the therapist or in conversations where the therapist assists each party to listen carefully and to communicate clearly. Therapists help parents to calm strong emotions that may be present, educate parents to the needs of their children they may not be aware of, craft parenting plans that are suited to the unique needs of the family, and generally support all members of the family through the transition of living and parenting in one household to living and co-parenting in two households.
Assessment in this context may include testing and consultation with extended family and community members outside the family, but is generally contained within the relationships between the therapist and family members. This therapeutic assessment is more of a subjective and/or therapeutic description of the situation than an objective measurement against normative standards.
However, this work is vulnerable to the adversarial practices of traditional law. For example, work by a therapist to strengthen the common ground between separating parents can easily be damaged by a letter from an attorney that (even unintentionally) puts an adversarial spin on a delicate issue. Moreover, having to provide information for a custody and access assessment can irreparably damage the working relationships between the therapist and family members. Requiring the therapist to testify in court also can irreparably damage therapeutic relationships.
Equally, the therapeutic practice of therapists working with children and families on other issues can be dramatically influenced by a marital transition in the family. For example, a child psychologist working with a child and family around ADHD issues would be substantially affected in their work by a parental separation. Therapeutic work on stepfamily (remarriage) adjustment can be substantially disrupted by legal proceedings regarding custody and access.
Children’s Issues Within the Traditional Legal System
Within the litigation system, children’s issues are primarily addressed through the custody and access assessment. The custody and access assessment is intended to be an objective assessment of the parents and children. Direct observation, testing (using measures with normative standards) and consultation with extended family and community members outside the family are generally used. Recommendations are sometimes included. In general there is no therapeutic intention. In fact, these assessments can be highly offensive to the parents and corrosive to the common ground between them. At times the custody and access assessment can lead to a judicial decision that helps the family move forward. However, they do not help to resolve problems and often add to the acrimony of an already conflicted family environment.
Alternatively, a child therapist may be asked to interview the child to ascertain their wishes. This professional then acts an advocate for the child by bringing this information to the legal forum.
The Child Specialist Within the Practice of Collaborative Family Law
The advent of Collaborative practice allows us to bring together the best of traditional therapeutic practice and legal decision-making regarding children’s issues through the role of the Child Specialist1. The child specialist is a licensed mental health practitioner who is a member of the Collaborative team. In addition to training in Collaborative Law, mediation and professional training as a therapist, the child specialist has additional training and/or experience working with children. Child specialists may be affiliated with the disciplines of child psychology, family therapy or play therapy.
The child specialist is included in the Participation Agreement, the contract signed by both parents and divorce coaches that defines the assumptions and outlines the agreements of the collaborative process. (A similar agreement is signed by collaborative lawyers and parents.) This means that both parents and all team members agree that all discussions involving the child specialist are considered part of the collaborative process and therefore are protected from any future adversarial action. The participation
1 The term ‘Child Specialist’ is not intended to convey special designation with a registration body but rather is used to indicate the role of the professional who fulfills this role for the Collaborative team agreement also states that in the event that the parents withdraw from the collaborative process, no team members will be involved in any future adversarial action.
Within the Collaborative team, the Child Specialist is a neutral third party who focuses exclusively on the children’s concerns and/or their interests. The task of the Child Specialist in relation to the team is to keep the children’s interests in the picture while the issues of the separation are resolved. Similar to the type of work that therapists have been doing with children and families around separation and divorce within traditional therapeutic practices, the child specialist role includes therapeutic assessment of the children, direct observation of children and parents, and consultation with extended family or community members as necessary. It also includes reporting back to the parents and to the team. The child specialist may work with the parents to create the parenting plan. (Exceptions to this are discussed in detail later in the chapter.)
For the children, speaking to the Child Specialist can be a welcome relief. Generally children are only too aware of how their parents are feeling. Children can sometimes feel as though they must tell each parent what that parent wants to hear. The Child Specialist can provide a safe place for the children to share their story, ask questions and discuss their concerns.
The child specialist avoids establishing a therapeutic relationship with either parent in order to remain in the advocacy position for the child(ren). The Child Specialist’s neutral position in relation to the parents allows highly contested issues to be addressed from a third perspective that focuses more clearly on the children’s actual needs or concerns. This often serves to defuse the tension between the parents on children’s issues. Further, parent education on child development and/or separation and divorce issues from a neutral third party can help clients soften their position and shift into a more thoughtful and reflective perspective regarding their children.
The child specialist reports back to the team and to the parents. As such, the children must understand that the child specialist is a member of the collaborative team and that important information will be going back to the team and to their parents in order to assist their parents in making the best possible decisions about the separation for the family.
Although this may appear to create an ethical dilemma regarding confidentiality for the children, in essence it is no different than any other therapeutic environment that involves children. As therapists we cannot keep secrets from parents of young children. For older children we all work in to help facilitate conversations about sensitive topics between parents and teens. Equally, it is possible to communicate about general concerns that parents can address rather than to disclose details that the child or teen may wish to keep private.
Introducing the Child Specialist
The child specialist can enter the process at any time. Collaborative lawyers and divorce coaches let parents know about the child specialist role at the beginning of the collaborative process. In some cases, clients will arrive with a need for someone to work with their children already clearly formulated. The child(ren) may be exhibiting signs of distress that are clearly understood by both parents. More frequently, clients are just getting used to the idea of the collaborative team and are not necessarily thinking of adding more members. In these cases, team members can continue to raise the issue of the child specialist when it becomes necessary. This could be when each parent holds a sufficiently different perspective of the children so that decisions cannot be made that satisfy them both or when the team needs information from the children that the parents cannot access in a neutral way. At this point, the introduction of the child specialist is generally welcomed by the clients as it offers a way to reduce tension and to determine what the children are experiencing in a less conflicted way.
Getting the Child Specialist on Board
Once it is decided that a child specialist will be involved, the coaches present the names of one or two collaborative professionals from the larger group who may be available to help. If there is no reason not to involve them (i.e., previous relationship with either parent, location, etc.) the coaches then contact each one to determine their availability. Once the coaches are clear who will play the role of the child specialist, the parents are given the relevant information. This avoids any confusion for the parents around contacting the child specialist.
Coaches work with the clients to decide who will take the child to the child specialist. This is very important. Even though the child specialist is neutral, parents are often concerned that whoever takes the children to the appointments will have an advantage. Some parents alternate. Some parents go together. Whatever works.
Briefing the Child Specialist
Getting information from the collaborative team is essential. This is generally done in either 3- way conversations (divorce coaches plus child specialist) or 5-way conversations (collaborative lawyers, divorce coaches plus child specialist), most commonly on the phone, to brief the child specialist on the situation. This includes a brief history of the family, the perspectives and concerns of each parent and child(ren), and the specific issues that are being addressed in the coaching work. Having representatives of both spouses in these conversations at the same time ensures that the perspectives of both clients are discussed. The need for the lawyers also to be involved is generally determined by the level of conflict, the reactivity of the clients to the anticipated information (Are they ready to pull out?) or the magnitude of the problem, i.e., relocation, or any other issue that has significant legal implications.
In general, the child specialist is free to gather information as they see fit. The meetings with the child specialist provide an opportunity for the children to talk. Equally, the child specialist may be asked to give general feedback on the children. At other times the team may have specific questions in mind. Relevant information can include:
• Family dynamics
• Sibling dynamics
• Alliances within the family
• Parenting practices
• Attachment to parents
• Individual well-being
• Experience of the separation
• Experience of conflict
• Bonding with grandparents and extended family
• Peer relationships
• Preferences for living arrangements of other aspects of the post-separation family
The process can include:
• Interviews with the children (in the sibling group and/or individually)
• Interviews with parents (separate or together),
• Meeting with children and each parent separately
• Consultation with teachers
• Consultation with extended family, and relevant others.
Therapeutic techniques for younger children could include:
• Sand tray
• Drawing the family
• Family sculpting techniques
• Psychotherapeutic games
• Reading children’s books on separation and divorce (i.e., Dinosaurs’ Divorce, I don’t want to
talk about it)
• Doll house play
The degree to which testing and measurement is used will depend on the child specialist. Unlike the tradition of custody and access assessments in the litigation process, many therapists do not use pencil and paper assessment techniques to gather information but rather use relational methods such as interviews and/or play. (See Nurse, 1999 for the use of standardized measures in collaborative separation and divorce practice for child specialists.)
Feedback to the Team
How the information from the child specialist is communicated back to the team and to the parents is critical. The involvement of the child specialist, almost by definition, means that there are significant tensions between the spouses around the children’s experiences. There has usually been blame and shame from one party to the other and both are generally feeling very vulnerable and reactive.
Sometimes the child specialist is simply providing a forum for the children to be able to relax and talk about their family. In this case, the child specialist will have observations for the other team members. Other times, there are specific questions that need to be addressed, in which case very specific information will come back to the team.
No matter what the issues, the information from the child specialist will come back to the team first, and then to the parents second. The team will decide the most constructive and least destructive way to bring the information to the parents. It is important to note that the purpose of this process is not to block information from the parents but rather to create a forum in which both parents can be supported while they receive the information. Parents need to hear what is being said, to be able to ask questions until they are satisfied they understand the information, to integrate sometimes very painful news, and ultimately to be able to act on the information in way that is life-enhancing for the family, particularly for the children.
Information is brought to the team in the same way that the child specialist was briefed before meeting the children. Generally this information is communicated in a 3-way or 5-way teleconference. If the issues remain close to the parenting plan or perhaps general parenting issues, the lawyers are not likely to be involved. However, if these issues play into larger legal or financial concerns such as relocation or selling the family home, then the lawyers will likely need to be involved.
As in the initial briefing of the child specialist, the feedback from the child specialist to the team occurs in one conversation that includes everyone. The higher the stakes, the more important this is. By having only one conversation, the possibility for misunderstanding is minimized. This also allows the team members to hear all the questions and answers that arise. Equally, this means that no one hears before anyone else, so there is no possibility, however unintentional, that one party hears before the other.
Written reports from the child specialist to the team are avoided. This saves time and money. However, more importantly, it allows the information to remain fluid, rather than locking it into a document. The child specialist is not acting as an assessor in the traditional sense, but more as a consultant to the family and a voice for the children. It also avoids any argument on the nuances of language and refocuses attention on the general themes and more importantly, what can be done to address the concerns identified
The meeting generally ends with a discussion of ‘What next?’ Who will communicate what to whom and when? One effective method is for the child specialist to attend the first half of the next coaching 4-way, give the information to both parents at the same time and to be available for questions from the parents. The second half of the 4-way is then available for the coaches to work with the fall out from the information, helping clients to integrate what has been said and to work out ways to respond to it for their children’s best interest.
How long is the child specialist involved?
Similar to the divorce coach, the child specialist’s work is generally ‘brief, goal-oriented and systemic’ (Roussos, 2002). In most cases, the child specialist meets with the children only a few times. The issues addressed relate to the marital separation in the family system. Like the divorce coaches, the child specialist can be available to the family post-separation to help resolve problems that may arise due to developmental changes or changes in circumstances that require an adjustment to the parenting plan. Again, like the coaches, the child specialist is not available for long-term work with the children or for work on issues unrelated to the separation.
1. Fear of bias in child specialist
When the collaborative cases includes a fear of bias in the child specialist, careful attention must be paid to the process of moving information to the child specialist and back to the team. Some parents feel very vulnerable to any hint of bias on the part of the child specialist. These parents may feel that their spouse is better able to communicate with the child specialist and that they are at a sufficient disadvantage in this area. They may not want or actually forbid direct meetings between the child specialist and either parent.
For example, in one family, one spouse was a professional working with children in the same age group as their own children and the other spouse felt relatively inarticulate regarding children’s issues. In this situation, direct consultation between the child specialist and the parents was threatening to a collaborative process that was struggling to stay on track.
In these situations the involvement of the child specialist must be carefully considered. If the child specialist looses their neutrality in the eyes of the parents, they will be of little use to the team. Furthermore, loss of their neutrality in the eyes of the parents puts their relationship with the children in a precarious position. In the worst case scenario, if one parent no longer supports the work of the child specialist, the children could lose their relationship with the child specialist altogether.
In these situations an all-way veto may be helpful. Given a clear understanding of the circumstances and the role of the child specialist, any of the professionals or parents involved can veto direct consultation between the child specialist and either parent in the short term. This gives both parents and coaches the freedom to address concerns in this process. It also holds out the possibility of direct contact later in the process once the tension has abated.
For example, in one family the primary care giver wanted to begin working one-on-one with the child specialist around behavior problems in the home and the child specialist agreed that this would be a good idea. The other parent however seemed to feel threatened by this and would not agree to it. Two months later an all-way agreement was reached and the process moved forward smoothly.
In traditional therapeutic practice therapists meet directly with parents. In the collaborative process it may also be preferable for the child specialist to meet directly with the parents to get the parent’s information first hand and to have a direct experience of the parents. However, concerns about the neutrality of the child specialist cannot be ignored. These concerns can be addressed by minimizing the contact between the child specialist and the parents. Parents can be instructed not to engage the child specialist in discussion of their view of the family situation but rather to communicate their concerns to the divorce coaches who will, in turn, bring them to the attention of the child specialist.
2. Extremely high conflict
Families in which the spousal relationship is highly conflicted may also challenge the traditional therapeutic practice of meeting with parents together. The risks and benefits of this for the rest of the team and the collaborative process must be evaluated. If the problem is that the collaborative process may be put at risk, then this must be carefully considered, especially when the same information can be exchanged through the coaches. Equally, if meeting together with the child specialist increases the conflict between the parents, it will likely spill over into the coaching 4- ways, thereby further destabilizing an already challenging coaching process.
For example, in one case of extremely high conflict, the parents had not made eye contact or spoken directly to each other for two years even though they still lived in the same home, communicating only through notes. There were 3 children in the family. The tension between them in the coaching 4-ways was palpable. Equally, one of the parties was close to withdrawing from the collaborative process. Putting them together to discuss their children’s concerns without coaches present would have added to the already substantial risk of derailing the collaborative process.
3. Condemning information
Sometimes the feedback from the child specialist will confirm the perceptions of one spouse, putting vulnerabilities of the other in sharp relief. For the parent whose views are confirmed, this information can encourage them to gloat, blame or become more entrenched in their experience. For the parent whose views are challenged, this information can be like putting salt on an open wound.
In these circumstances, reporting back to the parents can be done in two stages. First, coaches can meet with their clients separately for a preliminary review of the feedback from the child specialist. Second, after the sting of the information has subsided, coaches and parents can regroup to work on what needs to happen in the short and long term for the children’s best interest. The child specialist may be present as the team and parents decide.
For example, in one very high conflict family, the children were afraid of Mom because of the very high level of anger expressed in the home. She believed that her anger was directed solely at Dad, was not about the children, and so perceived the children as unaffected by it. Dad believed that the children were indeed afraid in their relationship with Mom.
The child specialist report confirmed that, among other things, the children were indeed very afraid of Mom. The team decided to separate the parents for the first half of the coaching 4-way, to give them each the overview of the feedback independently, and then to come back together to integrate the information and to work on strategies to improve the children’s living situation.
Collaborative teams strive to create the most efficient and effective process possible. If direct consultation between the child specialist and the parent(s) is possible and safe, then clearly this is the most straight forward option. At the same time, special circumstances may preclude this possibility in the short or long term. The risks and benefits to the rest of the team and to the collaborative process itself must be carefully considered.
4. Children presenting with clear needs for therapy
When separating parents come into the collaborative process in agreement that their child or children have a clear, immediate and agreed upon need for therapy, the collaborative team is compelled to respond to these needs. These situations can be very extremely challenging, raising any number of ethical dilemmas for divorce coaches and collaborative lawyers alike. However, in order to maximize the benefits of this integration of traditional therapeutic practice and legal decision-making regarding the children’s interests that is the foundation of the collaborative process, we must remain open to the modification and evolution of our practice. The collaborative separation process is still a ‘work in progress’.
For example, a very distressed mother contacted me because her 6-year-old son had threatened to put a substance to which Dad was known to have a lethal allergy, into his food without his knowledge. Mom and son had moved out to her new partner’s home and Dad was desperate to have more contact with his son. The family was at the beginning of the separation process. The couple was in high conflict and there was no parenting plan. Both parents wanted to engage in the collaborative process and for their son to be seen by a child therapist as soon as possible.
In conclusion, the role of the child specialist represents a tremendous step forward for children and families involved in parental separation and divorce. Incorporating the best of therapeutic approaches and legal decision-making, parents can be assisted in crafting separation agreements and parenting plans that are uniquely designed for their family.
The complexities and variation in family life will continue to challenge practitioners to review and reflect on the collaborative process. Ethical dilemmas will abound. Given that collaborative lawyers can now have the benefit of ideas and processes from ‘therapeutic territory’, creative and responsive solutions to issues that arise in the evolution of this process can be debated and resolved, thereby continuing to increase the sophistication and effectiveness of the collaborative separation and divorce process.
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