When parents of minors decide to divorce, increasingly they have options for “dispute resolution,” including mediation, collaborative divorce (each parent has legal representation but all agree not to litigate), and eventually settling out of court. Often, however, especially when one parent is unequipped emotionally and cognitively to handle the stress of divorce, “settling” is really “bullying” in order to wear them down. I have reason to believe that this may be most likely to occur within the immigrant population, particularly latino.
As a clinician in private practice, now specializing in the treatment of parents in litigation, I have made a number of disturbing discoveries. The essential issues of concern for myself, and also for the attorneys and mental health professionals interested in court reform, are the following.
“The best interests of the child” is taken for granted in social work and in the larger mental health field, but these fields remain unaware that in custody litigation, in most jurisdictions it is not at all an operating principle. Rather, the legal system holds to its traditional practices and procedures in which the passage of time has little consideration, and it has shown itself to be unwilling to make any modifications in order to streamline procedures to accommodate the needs of children. Custody litigation is an adversarial system and to litigators “time is money.” Any harm done to children and/or the parents is essentially regarded as “expectable collateral damage.”
For the most part attorneys and judges do not have any substantive training or any real understanding of the profound, and in many ways avoidable, psychological damage that their procedures are likely to have on the members of the litigating family, especially on the children. This is not considered the province of the law. Often the court recommends or mandates social services and “treatment” without knowing the quality of these resources and without any oversight to see if the parent follows through. The lack of any ‘quality control’ for these services or practitioners (who may not even be licensed) has left the field open to unqualified people working ‘for profit,’ thereby excluding or exploiting the poor. This is most likely to be true of the supervised visitation services.
Also, the court gives no consideration to a parent’s potential for compliance (e.g. substance abuse and anger management programs), and without any thought of followup to ensure the changes it is seeking. Aside from the lack of training, the sheer volume of cases for the seriously understaffed family court judges ensures protracted litigation. Ultimately this is due to the gross neglect, and therefore lack of funding, on the part of the state legislatures.
In custody litigation, often at least one of the parents has a severe personality disorder in the narcissistic spectrum, some extending into the antisocial and psychopathic range. Even the forensic evaluators often fail to pick up a parent’s sadism and pleasure in perpetuating the other parent’s defeat and torture. They do not use interview techniques or testing protocols designed specifically to identify pathological lying and psychopathy. Often in these situations the court surrenders to mandating ‘joint custody’ which in effect allows one parent to veto (sabotage) the other on any and all decisions regarding the children. It is the norm that both forensic evaluators and attorneys keep a misplaced value on “diagnosis” rather than concentrating on what the findings have to do with parenting capacities over time, e.g. genuine empathy with the child and generally sound judgment in matters that affect the child. Also the fact that diagnosis is not understood by lawyers easily opens the way for manipulation and misrepresentation of these terms. The classic examples are the concepts of ‘histrionic’ and ‘borderline.’ Among those with a good deal of exposure to the custody system, it is believed there may be a gender bias in this regard. In New York and other states it is not at all rare that custody is granted a parent despite having a record of neglect and/or abuse. Custody judgments are permanent despite the age of the children at the time the judgment is made. Even with babies and toddlers there is no allowance for changes in a child’s needs over time. At least in New York, far more often than not, attempts to appeal the court’s custody decision are denied. It cannot be assumed that children, including teenagers, are given any “voice of their own” at any stage of litigation, even through the lawyer that may be assigned to represent them legally. The primary reason for this is likely to be the indiscriminate assumption that inevitably at least one parent has “alienated” the child against the other parent to such a degree that any wishes or opinions the child may express are invalid. Among many attorneys and mental health professionals there is presently a good deal of contention over the so-called “parental alienation syndrome.”
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