A high-conflict divorce – in Dutch a vechtscheiding – is one in which the parents are no longer able to reach agreement about anything, and in which the conflict itself begins to harm the children. The legal system has a set of instruments for these cases, and it is worth knowing what each of them actually achieves, because the expectation that a court will resolve the conflict is usually disappointed. Courts decide questions; they do not end conflicts.
What the court can decide
Where parents cannot agree, the court determines the arrangements: where the children have their principal residence, what the care and contact arrangement is, what maintenance is payable, how the assets and pensions are divided, and who may use the family home in the meantime. Interim provisions can be obtained for the duration of the proceedings, so that the situation is regulated while the substantive decisions are being taken.
Where one parent does not comply with an arrangement, it can be enforced, and a penalty payment can be attached to each occasion of non-compliance. In persistent cases a pattern of obstruction can influence the decision about where the children live and how parental authority is exercised.
Instruments aimed at the conflict rather than the question
Three are used regularly. The court can refer the parents to mediation, and referral at an early stage is more effective than after months of litigation. It can appoint a special representative for the children, a bijzondere curator, whose task is to represent the child’s interests where those interests conflict with the parents’. And it can order a parenting investigation by the Child Care and Protection Board, which reports on the situation and advises on the arrangement.
Where a child’s development is seriously threatened, child protection measures are available: supervision by a certified institution, and in extreme cases a placement outside the home. These are heavy instruments applied through the Child Care and Protection Board, and parents involved in them need advice quickly.
What the law cannot do
It cannot make a parent cooperate in good faith, it cannot restore trust, and it cannot compensate for the effect of continuing conflict on the children. That is not a defect in the system; it is the reason mediation and parallel parenting arrangements are pressed so hard.
Parallel parenting deserves a mention because it works where communication has failed. Instead of requiring the parents to consult, the arrangement is made so detailed that consultation is barely necessary: fixed schedules, fixed handover points, communication in writing and limited to practical matters. It is not a counsel of despair; for many families it is what allows the children to have a settled life with both parents.
Practical guidance
Three things help. Keep a factual record rather than an emotional one; what carries weight is dates, messages and what was agreed. Keep the children out of the dispute, including out of the correspondence, because a parent who involves the children damages their own position as much as the children’s wellbeing. And separate the issues: maintenance, contact and the division of assets are decided on different criteria, and combining them into a single negotiation is what makes agreement impossible.
Advice
Our family lawyers act in high-conflict cases, apply for interim provisions and enforcement where an arrangement is not honoured, and advise on child protection proceedings. Where a case can still be settled, we say so. Please contact Law & More.
