What Triggers Violence in Custody Battles in the United States?

Posted By Pasadena Family Law Attorney || 23-Oct-2011

"While violence arising from custody battles in the United States has been a constant presence, the American Bar Association (ABA) Commission on Domestic Violence has long recognized the potential for escalation in such disputes." In fact, "studies show that 25-50% of disputed custody cases involve domestic violence."

Three of the most recent incidents involving shooting deaths related to custody battles in the United States occurred in the ten (10) days between October 12, 2011 and October 21, 2011.

On October 21, 2011, "a mother in suburban Dallas fatally shot her 7-year-old son and then killed herself... as police waited outside with her estranged husband, who was there to pick up the child after receiving court-ordered custody.... The father had been given sole custody of the boy after an acrimonious and drawn-out divorce."

A week before his divorce trial was to begin, on October 18, 2011, "Samuel Friedlander, by appearances a successful lawyer [in Westchester, New York]... killed his wife and children before shooting himself.... As the trial grew closer, acquaintances told investigators, Mr. Friedlander's behavior became erratic.... Michael Borg, 47, who went to law school with Mr. Friedlander, said his friend had complained that his wife was controlling and emotionally abusive. 'He was depressed,' Mr. Borg said. 'He was beaten, and his big fear was that she was going to take the kids away.'"

On October 12, 2011, a shooting left nine people dead in Seal Beach, California. A "bitter father [Dekraai] [was] charged with gunning down his ex-wife [Fournier] and eight others at a beauty salon" in Seal Beach, California. Although the marriage ended in December 2006 when they separated, they were involved in an ongoing bitter custody battle over their son. The day before the shooting, a court hearing had taken place wherein Dekraai had refused to accept a court-ordered report "which recommended a near-equal custody arrangement for the couple's 8-year-old son." Dekraai had sought full custody of his son and insisted on a trial, which was set for December. Fournier's attorney described the October 11, 2011 hearing as "'benign', merely a scheduling meeting." "Police say, a bitter custody battle over his 8-year-old son triggered his spasm of violence." In addition to those killed, the shooting "shattered the lives of many others and impacted the sense of security enjoyed by many of the 24,000 residents of the Orange County, California community...." Dekraai had previously been diagnosed as bipolar and suffered from post-traumatic stress disorder.

What is 'benign' about an additional two month delay in a determination in a bitter custody battle? Nothing is not nothing! How can lawyers and judicial officers who work in the field of family law not realize that "the waiting game" itself is stressful? Continuances and delays are not "benign."

Whenever one such incident occurs, people seem to question what might have triggered such violence. For example, people seem to think that Dekraai went on a shooting rampage in Seal Beach as a result of his bipolar disorder and the fact that he suffered from post-traumatic stress disorder. In fact, the "D.A. expects an insanity defense in the Seal Beach shootings case."

I dare say that sometimes the right answer is the most obvious answer. That answer is the family law system in the United States. Emotions play an integral role in family law proceedings! As Judge Michele Lowrance, a domestic relations judge in the Circuit Court of Illinois, wrote in her book titled "The Good Karma Divorce", "The court system was not built to house these emotions, and attorneys are not trained to reduce this kind of suffering. Divorcing people expect relief far beyond what the legal realm can provide from their attorneys and the courts, and they often end up feeling like members of a powerless, unprotected class." Moreover, "psychologists note in child custody cases, when a parent doesn't get what he or she wants, they often feel their parenting is being attacked. This can bring on a deep, different kind of rage. And in these cases, parents dueling for custody become so adversarial they forget what's best for the child."

"The stress of a divorce comes second only to the death of a spouse. Moreover, "when it comes to divorce, certain aspects of loss become slightly magnified." In other words, the manner in which people process and manage the stress/loss caused by a divorce is more destructive to themselves and others because they are able to act out against the other person who was involved in that relationship."

It is fascinating that when more civilized, enlightened and less barbaric countries [Australia, England, Wales, and Ontario, Canada] are plagued with the same problems with their family law systems, they embrace mediation and other forms of consentual dispute resolution because they address most, if not all, of the problems with litigation and courts in family law situations. In those countries, litigation and courts are now referred to as Alternative Dispute Resolution and mediation and other forms of consentual dispute resolution have become the Primary Dispute Resolution or Family Dispute Resolution. Yet, in the United States, litigation and courts are the still the "first choice for the resolution of family law disputes." Mediation, Collaborative Divorce and the like are referred to as "alternative dispute resolution (ADR) or more recently as "consentual dispute resolution" (CDR). The name change may more accurately reflect the manner in which the disputes are resolved, but it does not change the fact that it is still not the "first choice for the resolution of family law disputes."

On July 20, 2011, The Los Angeles Times reported that "Californians will soon face longer lines in courthouses, delays in finalizing divorces, prolonged custody battles and extended waits for lawsuits to go to trial as a result of deep budget cuts approved by state lawmakers." In response, lawyers who are members of the family law section of the Los Angeles Bar Association began commenting with each other on the family law listserve. One attorney pointed out that the "Code of ethics requires attorneys to advise their clients of ADR." Another attorney stated, "Mediation sounds so fair, so reasonable. But in my experience, it works if there are three factors present: (1) Both parties know what assets and obligations they have ( read: nobody is playing hide-the-ball); (2) Both parties have a good understanding of what they're entitled to (read: they have realistic expectations); (3) Both parties can effectively advocate their own interests; (read: no threats or bullying that silences one of the participants); Honestly, how many of our clients meet that description? And it helps if the cost is shared so that the mediator does not become an advocate for the person paying." In response, another attorney stated, "There is a fourth factor to a mediation to wit, both parties must desire the divorce to the same extent, otherwise, the victim spouse will sabotage the settlement process." Another then commented that, "If both parties had the ability to recognize and understand these issues then there would probably not be the need for mediation." Finally, an attorney expressed that "if the parties had the good sense to understand the issues not only would they not need mediation, they might not even need a divorce." I then asked, "Why is it that mediation and collaborative divorce is very successful in other countries and in some states in the U.S., but the family law litigation community here seems to have a completely different impression? Is it that people in Los Angeles somehow differ from people everywhere else or might there be other explanations?" Nobody even acknowledged my questions.

While I was disappointed to read these remarks from fellow family law attorneys, I was unfortunately not surprised. Shortly before these family law attorneys shared their views of mediation, collaborative divorce and other forms of consentual dispute resolution (CDR), I had the pleasure of hearing Tobias Desjardins speak at a meeting for the Collaborative Divorce Professionals Of The Inland Empire. Tobias is the Director & Founder at International Center for Peaceful Shared Custody, a Director at Prevention Network, Therapist, Mediator and Author. During his talk, he mentioned that families are frequently referred to him by judicial officers when a child becomes suicidal as a result of their parents protracted custody battle. He told us that by the time he sees these families, both parents have worked with several different attorneys and that they have consistently told him that the first time they learned about mediation or collaborative divorce was through him. This reality is not only indicative of unethical conduct by family law attorneys, but it is just plain tragic.

The Eggshell Skull Rule is a "doctrine of American tort and personal injury law that a tort-feasor or wrongdoer takes his victim as he finds him. This means a tort victim's compensation or damages are not discounted because of any pre-existing vulnerability."

Everyone going through a divorce and/or a custody battle suffers from a great deal of stress and is therefore not thinking clearly. We know that the family law system in the United States is emotionally destructive. Yet, "the legal system is resistant to change even when we know that there are cheaper, simpler and less stressful alternatives. It is easier to stay in the adversary system 'rut' than to pave a new modern road. Some lawyers will undoubtedly object since they will earn less than they do now from contested divorces. Unfortunately, one of the main sources for resistance to legal reform comes from lawyers with a vested interest in a complicated system that forces litigants to need their navigational and advocacy skills. That is not a sound reason. The legal system exists for the benefit of the public and not for the financial benefit of a few lawyers who make money from the marital conflicts of the litigants." It seems to me that those responsible for the family law system's resistance to change are ultimately responsible for the injuries and deaths that occur as a result of the violence that arises from custody battles in the United States. After all, isn't everyone going through a divorce or custody battle suffering from "temporary insanity", especially when current system does nothing but exacerbate the emotions involved?