Is This High-Conflict Divorce or Litigation Abuse?

When a divorce and custody case drags on with numerous motions, it is easy to assume that this is a “high-conflict divorce.” However, this label may miss litigation abuse dynamics (Gutowski & Goodman, 2022).

Sometimes, one party aims to dominate their ex-partner in any way they can. That person will try to use the court system—and those of us who work in tandem with the courts—to abuse their ex-partner. Litigation abuse allows someone with greater access to money to maintain power and control over their ex-partner into the post-separation period, through the courts. This abuse can last more than a decade until their children are legally independent.

When court-involved professionals become aware that one party is perpetuating ongoing, unnecessary litigation designed only to harm the other party, those professionals may be able to take a stand. For example, an attorney could decline to file unnecessary motions. Or a parenting coordinator could inform the court that only one party is obstructing progress. A custody evaluator could reveal that one party is deliberately delaying, confusing, or interfering with their work. In reports, professionals can detect and should point out when a case is in fact characterized by litigation abuse.

When evaluators automatically misclassify cases where there is a lot of litigation as “high conflict,” they are effectively labeling both parties similarly when only one party is at fault. This creates false equivalencies. Evaluators can help judges understand the true dynamics by indicating that one party is using litigation to abuse the other.

The chart below helps clarify the differences between “High conflict divorce” and “litigation abuse.”

Source: Lisa Fontes

Failure to recognize that one party is using the courts as their playing field for litigation abuse may lead evaluators and judges to erroneous decisions. Suggestions that imply a joint or cooperative path to “work things out,” such as mediation, using a parenting coordinator, parallel parenting, or shared legal custody, will not work when one parent seeks to dominate the other. Alternatives that protect the autonomy and safety of the victimized party will work out better. Jaffe et al. (2023) describe criteria to determine when to recommend co-parenting, parallel parenting, supervised exchanges, supervised access, or suspended contact.

Here are ways evaluators can resist litigants’ attempts to mislead them:

1. Use structured interviews with open-ended questions, where possible. Having a consistent practice within and between cases helps stave off bias. Open-ended questions beginning with “tell me” or “please explain” will prompt the interviewee to say more.
2. Keep control and maintain a balanced process. Evaluators should avoid granting exceptions to their usual process to one parent only; they risk both the possibility of being manipulated and the appearance of being manipulated.
3. Conduct repeated and relatively long interviews. Extended contact helps evaluators detect manipulations and inconsistencies that may not seem immediately obvious.
4. Request accounting for discrepancies in the record. Evaluators should inquire when a party’s statements contradict the record, and ask for evidence of their assertions, where available.
5. Maintain clear boundaries. Evaluators should resist being charmed into agreeing to a fishing trip or a restaurant meal with one of the parties (and the children). Accepting special gifts, outings, or favors could introduce both bias and the appearance of bias into an evaluator’s findings.
6. Document all refusals, delays, and cancellations. If one party refuses, confuses, or delays the completion of paperwork, misses a meeting, or is uncooperative, evaluators should document these behaviors in their report.
7. Make sure the process is balanced. Evaluators should spend the same amount of time with each party and meet with them in the same way. For example, it would not be appropriate to hold virtual meetings with one party and in-person meetings with the other. It would be similarly unjust to observe one parent with all the children at the same time and the other in separate, smaller meetings with each child alone.
8. Look for parenting patterns before and after separation. Determine who has been the primary parent over time, not just shortly before and since separation. Increasingly, savvy parents spend a few months before separation converting themselves into “super parents” to be able to claim custody and avoid child support.
9. Look for patterns of abuse and control well before separation. This might include calls to the police, documented injuries, geographic moves that financially advantage one party over the other, and financial manipulation. Note if one party seems to be financially draining their ex-partner for legal advantage. Note signs of divorce-induced un- or underemployment.
10. Hold similar expectations. Sometimes people hold a low bar for fathers and a much higher bar for mothers (Mandel, 2024). The parenting expectations should be similar if parenting time allocation and/or decision-making are in question.
11. Avoid recommending joint decision-making where there are signs of coercive control. Where one parent uses every opportunity to control the other, joint decision-making will not be possible. Therefore, final decision-making should be assigned to the parent who has acted more responsibly over time. This will avoid returning to court for each and every small decision for years.

Evaluators tend to assume that both parents are acting in the children’s best interest, but this may not be true. Abusive partners may look great on the surface. They may be charming, have a nice home, and say the right things. However, at the very same time, they may be more motivated to harm the children’s other parent than to protect their children’s well-being. This has been termed spiteful disregard (Fontes & Adams, 2024).

Clearly labeling one party as engaged in litigation abuse, where applicable, will help judges make sound decisions about the children’s best interests.