Confronting the Challenge of the High-Conflict Personality in Family Court

• Author: Esther Rosenfeld & Michelle Oberman with Jordan Bernard & Erika Lee
• Position: Esther Rosenfeld of Rosenfeld Family Law, P.C. in Sunnyvale, California, has practiced exclusively family law since 2001. - Michelle Oberman is the Katharine & George Alexander Professor of Law at Santa Clara University School of Law in Santa Clara, California. - Jordan Bernard is a member of the Santa Clara Law class of 2020. - Erika Lee is a...
• Pages: 79-118

79

Confronting the Challenge of the



ESTHER ROSENFELD* & MICHELLE OBERMAN**

WITH JORDAN BERNARD*** & ERIKA LEE****

Introduction

Those who interact with family law courts often wryly note the disparity

between the term “family law,” conjuring up images of collaboration and

warmth, with the reality of the knock-down, drag-out wars experienced

          

   

parenting status go to the very heart of human identity, so it isn’t surprising

that legal proceedings involving divorce or the breakup of a nonmarital

relationship involving children trigger fear, anger, recrimination, and an

array of other strong feelings.

In spite of these strong feelings, the vast majority of family law cases

resolve outside court through some manner of settlement procedures. It is

estimated that only 10 percent of family law disputes end up going to trial,

* Esther Rosenfeld of Rosenfeld Family Law, P.C. in Sunnyvale, California, has practiced

exclusively family law since 2001.

** Michelle Oberman is the Katharine & George Alexander Professor of Law at Santa

Clara University School of Law in Santa Clara, California.

*** Jordan Bernard is a member of the Santa Clara Law class of 2020.

**** Erika Lee is a member of the Santa Clara Law class of 2020.

The authors thank their interviewees for sharing their time, expertise, and wisdom; Professor

Katharine K. Baker for helpful comments; and Kendra Fershee and Lisa Comforty for excellent

editorial guidance. In addition, the authors thank Santa Clara Law School’s Faculty Support

Program and are grateful for the support of an anonymous donor. Inquiries should be directed to

Esther Rosenfeld at esther@rosenfeldfamilylaw.com.

Published in Family Law Quarterly, Volume 53, Numbers 1 & 2, Spring/Summer 2019. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

80 Family Law Quarterly, Volume 53, Number 2, Summer 2019

whereupon they take up the lion’s share of work for family law courts.1 One

might assume that these rare cases exclusively involve highly complicated

divisions of property or particularly irregular custody disputes. Instead, a



complex legal issues, but rather they involve individuals who appear to

      2 Despite the existence of

reasonable options and opportunity for resolution in which both sides

relinquish some things and gain other things, these cases drag on for years,



issues, introduction of new issues, multiple changes in attorneys and even



    

 

the high emotional pitch of family law disputes is particularly prone to

         

         

courts must go to hear each motion, consider each issue, and address each

case on its own merits. It is a fundamental tenet of our judicial system

that decisions can only be made once due process is served through the

appropriate hearing or trial.3 But as one long-time family lawyer jokingly

put it, “Sure, everyone is entitled to their ‘day in court,’ but the question is,

how many days before we cut them off?”4



dispute. And even the sanest, steadiest, most mentally healthy parties can

get embroiled in litigation when it seems impossible to split the proverbial

baby. As one oft-repeated saying puts it: “criminal judges see bad people at

their best, while family law judges see good people at their worst.” Which

parent should be the primary caretaker for the children? Should the children

move with the parent who is moving to another state? Should the house be

sold? Who owns the family business? Issues like these can and often do

1. Aaron Thomas, What Types of Divorces Typically Go to Trial?, LAWYERS.COM, https://

www.lawyers.com/legal-info/family-law/divorce/what-types-of-divorces-typically-go-to-trial.

html (last visited Oct. 7, 2019).

2. For a detailed discussion on this body of cases, see infra notes 9–29 and accompanying

text.

3. The Supreme Court has long-settled case law on this issue, concluding that due process

is essentially the right of a party to be provided “notice” and “an opportunity to be heard” on

all issues in dispute. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 557–58 (1974) (holding “that



interests”).

  

Published in Family Law Quarterly, Volume 53, Numbers 1 & 2, Spring/Summer 2019. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

 81

  

expressed not only emotionally but also through litigation.

Yet in the majority of family law cases, in spite of the high stakes, the

parties reach resolution relatively swiftly, presumably because they share

the desire to reach closure and are motivated to seek stability and move on

with their lives.5

What interests us here are the cases that do not reach closure. The family

law literature, along with our research described herein, suggests that there



because one or sometimes both parties do not want resolution.6 Instead of

the typical motivation toward settlement, these cases feature a party who

 

genuine belief in their cause, anger over the loss of a relationship, a desire

           

some combination of these factors and others, the litigious client presses

the family law court into service.

The literature surrounding these cases tends to refer to these litigants as

7 It is a descriptive

rather than a diagnostic term; there is no such category in the Diagnostic

and Statistical Manual      

used by mental health professionals in the United States.8 Instead, it is

a useful way to describe the personality traits that so often surface in

the divorce cases that defy settlement, in spite of reasonable and readily

available terms.

This Article undertakes a comprehensive overview of the problems

   

I offers an overview of the relatively sparse literature on this topic in both

professional family law journals and the popular press. This literature

            

would-be former spouses, offspring, lawyers, and the family law system

as a whole.

5. See Thomas, supra note 1 and accompanying text; infra note 42 (discussing “enlightened

self-interest” as a motivating factor in facilitating marital dissolution).

6. See infra notes 48–80 and accompanying text.

7.

BILL EDDY, HIGH CONFLICT PEOPLE IN LEGAL DISPUTES (2d ed. 2016) [hereinafter EDDY,

HIGH CONFLICT 2016]; see infra       

personalities”).

8. Even if some percentage of these protracted disputes involve litigants with diagnosed

personality disorders (such as narcissistic personality disorder, see DIAGNOSTIC AND STATISTICAL

MANUAL OF MENTAL DISORDERS 645, 669–72 (5th ed. 2013) [hereinafter DSM-V]), many

litigants in these cases lack formal diagnoses. See infra notes 31, 94, and accompanying text.

Published in Family Law Quarterly, Volume 53, Numbers 1 & 2, Spring/Summer 2019. © 2020 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion

thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.