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Journal Issue: Children and Divorce Volume 4 Number 1 Spring/Summer 1994

High-Conflict Divorce
Janet R. Johnston

Incidence of High-Conflict Divorce and Associated Factors

Estimates of Incidence of High-Conflict Divorce

Estimates of the incidence of highly conflicted divorce ideally would be drawn from large studies designed to be representative of the full divorcing population. Unfortunately, the studies in this category provide scant information about the rates of conflict of any kind. Tangentially, in a national study, Furstenberg and Nord noted that the most prevalent pattern of child rearing two years after divorce is "parallel parenting," in which the only attempt parents make to communicate or coordinate their child-rearing practices is around visitation arrangements.6

A recent California study by Maccoby and Mnookin of 1,124 families with 1,875 children, recruited from divorce filings in two counties and reinterviewed one year and two and one-half years later, has provided some estimates, albeit ones that were not intended as incidence statistics.7 With respect to the amount of legal conflict over custody and visitation matters, these researchers identified a "conflict pyramid," showing that, in half the divorces, these issues were uncontested; in nearly one-third more cases, the issues, although contested, were settled without the help of the court or its related services.

The remaining one-fifth of the families reached a settlement with respect to custody and access using the more formal conflict-resolution procedures offered by the court (11% in state-mandated mediation sessions; 5% after a formal custody evaluation; 2% during trial; and 1.5% decided by a judge). These "conflict pyramid" proportions are clearly linked as much to the objectives, principles, and procedures of California's (or the local county's) family law system as they are to a couple's propensity to dispute custody. The figures could be very different in states with different custody presumptions and different formal stages of dispute resolution. Using a combined measure of court data and parent interview data, these researchers estimated that 10% of families experienced "substantial" legal conflict, and 15% experienced a greater degree of "intense" legal conflict. Interestingly, the most hostile couples were not necessarily the couples locked in the most contentious legal battles.

Factors Associated with High-Conflict Divorce Coparenting Patterns

Three principal types of coparenting patterns were identified in the Maccoby and Mnookin study, generated by the presence or absence of discord (frequent arguments, undermining and sabotage of each other's role as parents), and the presence or absence of frequent attempts to communicate and coordinate with respect to the children.7 Three to four years after separation, there were three major patterns: high communication and low discord, called cooperative coparenting, characterized 29% of the sample; low communication and low discord, denoted as disengaged coparenting, involved 41% of the sample; and low communication and high discord, labeled conflicted coparenting, was a feature in 24% of the cases. Over the three-year period, it was unlikely for conflicted parents to become cooperative; most remained conflicted, and a small group became disengaged. Moreover, those who had conflicted coparenting styles were also more likely to be divorcing parents who had experienced substantial or intense legal conflict and who were more hostile to one another, especially mothers. It is important to emphasize, however, that these groups (those with high legal conflict, conflicted coparenting, and hostile attitudes) did not completely overlap, confirming that these dimensions of conflict are not identical; in fact, they may be only weakly related to one another.

In sum, using different measures (legal conflict, hostility, and conflicted coparenting), Maccoby and Mnookin's data indicated that one quarter of divorces were highly conflicted at an average of three and one-half years after the separation, by which time almost all couples had obtained their final decree.7 It is interesting that these estimates are not greatly disparate from smaller nonrepresentative samples. Two earlier studies—one by Wallerstein and Kelly of 60 families referred for counseling and one by Ahrons of 54 couples obtained from divorce filings—concurred that almost one-third of families remained very hostile and in conflict over child-rearing matters three to five years after separation.8,9

Families with Young and/or Many Children

What other factors are associated with high-conflict divorce? Again, the 1992 Maccoby and Mnookin study provides the best comparative data.7 No socioeconomic, income, or ethnic differences were found to distinguish divorces involving high legal conflict and conflicted coparenting styles from those with low indicators of conflict. Moreover, conflicted coparenting was just as likely to be experienced by children living in dual residences as by those who resided solely with either mother or father. Families with very young children were more likely to be highly conflicted both legally and in terms of day-to-day parenting. Larger families were somewhat more likely to have coparenting conflict than those with an only child. These findings suggest that the need to cooperate closely, especially in the care of very young children and in coordinating the separate needs of multiple children, increases the strain on the coparenting relationship.

Concern About Ex-Partner's Parenting Practices

Most notable, however, are the findings by these same researchers that pervasive distrust about the other parent's ability to care for their child adequately and discrepant perceptions about parenting practices generally typify the couples who are likely to be highly disputatious both inside and outside the court.7 These observations are supported by a recent California statewide study by Depner and her colleagues of 1,669 mediation sessions conducted in family courts, a sample which included 93% of all disputes regarding custody and access mediated during a two-week period.10 (California law requires mediation in any case where parents are disputing custody and visitation matters.) Within these sessions, serious multiple overlapping concerns about the ex-partner's parenting practices were raised by separating and divorced individuals: these included allegations of child neglect (38%), child physical abuse (18%), child sexual abuse (8%), and child stealing (6%). In addition, grave concerns were raised about exposing the child to the other parent because of his or her substance abuse (36%) or criminal activity (7%). It is not known if these allegations could have been substantiated, or if they mostly signified each party's negative perceptions, hostility, and distrust of the other.

It is commonly believed by family court counselors, however, that these allegations of neglect and abuse often do not meet the criteria for mandatory reporting. In fact, court counselors generally contend that, when such investigations are undertaken by child protective services, the allegations are frequently dismissed by overworked staff as being either indicators of interparental spite, impossible to prove, or insufficiently serious to require state intervention.

Depner and colleagues found that, in a startling 65% of families, domestic violence was alleged by one or both parents within the mediation session.10 Two small studies of high-conflict divorcing families, by Johnston and Campbell (n = 80) and by Johnston (n = 60), confirm this high level of domestic violence.11,12 Both samples were drawn from family court referrals for counseling that were made either because mandatory mediation in court had failed or because parents continued disputing over the care of their children, at times violently, despite a legal settlement. Physical aggression had occurred between 75% and 70% of the parents, in the first and second studies, respectively, during the past year, even though the couples had been separated, on the average, 30 months and 42 months. In 25% of the first sample and 20% of the second, the aggression was termed moderate and involved slapping, hitting, kicking, or biting. In 35% of the first sample and 48% of the second, it was denoted as severe and involved battering and threatening to use or using a weapon.

In a comparison sample of 60 cases drawn from a more general sample of divorce filings, where the couple had been separated more than two years, physical aggression was 36 times lower than in the court-referred samples.13 Taken all together, these studies suggest that, in divorces marked by ongoing disputes over the custody and care of children, both inside and outside the court, there is often a history of domestic violence in the family and a likelihood that the violence will continue after the separation.

Emotional Dysfunction and Characterological Disturbance

The extent of emotional dysfunction and characterological disturbance in individuals involved in high-conflict divorce has seldom been studied. Early clinical observations suggest that this group is more likely to have severe psychopathology, personality disorders, and substance abuse problems.14-17

Using ratings from the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III), two-thirds of the 160 parents in the first clinical study of high-conflict divorce described above were diagnosed as having personality disorders and one-fourth as having traits of same.11 Only 2% were diagnosed as psychotic. One-fourth had substance abuse problems. In the second clinical study of 120 parents, a standardized self-report measure of emotional symptomatology, the Brief Symptom Inventory (BSI), was used, and the results indicated that this sample fell midway between a normal population and a psychiatric population in degree of disturbance.12,18 The use of drugs and alcohol in this sample did not differ from that in the general population.

In 1989, Schaefer reported on a four-year follow-up study of 83 custodial parents who had contested and won custody (half were mothers, and half were fathers) and noted that their scores on the same standardized measure (BSI) indicated a poorer clinical picture than national norms.19 The critical question raised by each of these studies is, however, whether the manifestations of psychopathology represented ongoing personality and emotional disorders, or whether they were expectable reactions to severe stressors that included the divorce and legal disputes. For instance, it is difficult to determine whether the paranoia felt by a parent who is being accused by an ex-mate is unreasonable when that person is being evaluated in a court process to determine who is the better parent.