Book Review: Tug Of War: A Judge’s Verdict on Separation, Custody battles, and the Bitter Realities of Family Court
By Bruce Leslie

This book helps clarify the legal terrain travelled by separating parents through family courts, with a particular focus on families with children. It was written mainly for parents who are thinking about going to family court, seeking to resolve their conflicts but is also very informative for the many professionals who work with these families. Justice Brownstone, who is described in the foreword as a “…presiding, experienced, knowledgeable and caring family court judge” tries to forewarn parents to seek alternative avenues of resolution.

“Everyone should be mindful that there are no winners in family court when the fighting continues – everyone loses, especially the children.”

He highlights that litigation is about “winning” in an adversarial process. A family court petition is a lawsuit and although there has been some recognition of the broader implications in family court and “softening” of the rules, it is still “a highly competitive way to resolve disputes.” His hope is that parents can resolve their conflicts “in a proactive way, hopefully without court involvement.” Judge Paula Hepner in one of the forewords echoes Justice Brownstone's view.

“None will suggest that resorting to the courts to settle issues of custody and visitation is good for the children involved. On the contrary, there is uniformity of opinion that for children, the process of litigation can be extremely damaging.”

Separating parents are encouraged by the author to read this book as are law students aspiring to be family law lawyers. We also suggest that this book is worth reading by child welfare professionals involved with the families who do not heed these warnings. Justice Brownstone's book is a positive step in helping to ravel the complex familial dynamics and processes in the context of the family court proceedings, increasing the chances of positive outcomes and reducing the likelihood of negative ones. He has taken this complicated subject and managed to produce a book that is readable, inclusive and accessible.

Justice Brownstone, through his many years on the bench, has identified that…“aside from child protection cases where parental rights are being terminated due to child abuse and neglect, the most heart wrenching and tragic cases we see in family court are high-conflict custody and access disputes.” As child welfare services are becoming increasingly involved in parental conflicts with related child maltreatment concerns, an enlarging sensitivity and awareness of the family court process for separating families and the impact of this re-structuring process on children is recommended. The book, “Tug of War”, helps the field gain insight into some of the familial dynamics revealed by parents as they struggle to move apart, renegotiating relationships for themselves and their children through these legal processes. Parents that use the courts to resolve their separation are not in the majority (about 10%), but those that do have a greater likelihood of negative consequences for the children involved.

When these families require the involvement of child welfare services, they often prove to be extremely demanding cases. In Toronto, this has led to the creation of the “High Conflict Forum.” Since 2004, this multi-disciplinary group of professionals, representing over 30 agencies, brings lawyers, mental health professionals, child welfare practitioners and judges together on a regular basis. The goal of the Forum is to develop services and programs for children going through a high conflict separation and divorce, and also to provide training and case consultation services for professionals.

Although, child welfare services are not frequently referred these families, there are a significant number that do require intervention. The significance is most often related to the complexity of issues and extensive demands, frequently requiring a specialized service to address child maltreatment concerns in a potentially toxic environment in which the needs of the children are not always paramount. When these cases are referred, there are often a multitude of professionals from other agencies already involved in providing service. Children Aid Societies are required to assess for indicators of child maltreatment and work with the families in an effort to reduce the level of high conflict. This can best happen in conjunction with the many other community based treatment agencies.

These tumultuous family transitions are not the norm, but as the private battles of separating parents become more public in the courts, their disputes can be made even more public through the involvement of child welfare services. Judge Brownstone highlights that when this happens, it is most frequently focused on actual or potential emotional harm to the children. He writes, “…my purpose in writing this chapter (“When private disputes become a public concern: calling in the child protection authorities”) is to sound an alarm bell for parents about the possibility that a child protection agency might become involved.” Although he advises parents that “..the welfare of your child must always be your paramount concern”, not all are listening.

An understanding of some of the perils and pitfalls of these conflicted “wars” is important for child welfare professionals drawn into this legal web of warring parents, pulling on bonds that connect them to each other and their children. The welfare of children is keenly dependent on the quality of the relationships created by those around them. When family structures transition to new forms, turbulence can erupt and in more destructive situations, children can be harmed or at risk. Child welfare services are sometimes called on to assist and can be one of the key supports to achieve a smoother change for all involved.

In this book, there are many informative insights into the world of the legal process and courts for those not greatly involved or trained in these areas. For example, it is important for child welfare staff to understand that there are different standards of proof in the family courts and criminal courts, as sometimes apparently contradictory outcomes are seen in situations such as domestic violence.

Another area of interest is in the determination of “The best interests of the child” in these proceedings. It is described as a fundamental legal principle governing custody and access cases. The most commonly referred to components considered in determining these interests are identified in the book as the following.

• Child’s emotional bonds
• Family’s status quo
• Parenting plans
• Parenting skills
• Children’s views and preferences
• Domestic violence
• Assessments
• Access by non-custodial parent
  

Justice Brownstone describes his role as weighing up perspectives, balancing competing interests and listening to convoluted arguments, “some well thought out and others emotionally laden.” He is guided by the position that parents working Justice Brownstone describes his role as weighing up perspectives, balancing competing interests and listening to convoluted arguments, “some well thought out and others emotionally laden.” He is guided by the position that parents working cooperatively are most qualified to make decisions in their children's best interests. Although parents working through their separation in family court do not always evidence such effective communication, it does not preclude it as an outcome. He supports a resolution process for separating parents that is more sensitive, especially to the needs of the children who are directly and indirectly participating in these wars.

This book can aid child welfare professionals to more effectively understand the complex issues in working with families embroiled in a high conflict separation process carried out through the courts. Justice Brownstone provides valuable insights into the associated legal processes, which will further enhance our ability to help reduce the high levels of conflict.

About the Authors

Bruce Leslie is the Manager of Quality Assurance at the Catholic Children's Aid Society of Toronto and a member of the Research Advisory for the High Conflict Forum. Howard Hurwitz is the Director of Child Welfare Services at Jewish Family and Child Service in Toronto and the chair of the High Conflict Forum.

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