Child Custody Litigation

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. The most malignant and expensive end of the spectrum is child custody litigation. As a clinician now specializing in the treatment of parents in litigation, I have made a number of disturbing discoveries which dramatically underscore the urgent need for the court to have access to qualified professional social workers serving in a wide variety of roles. The essential issues of concern for myself, and also for the attorneys and mental health professionals interested in court reform, are the following.

  1. “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 – and certainly in Westchester – 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 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.”

  2. For the most part, attorneys and judges do not have training of substance in the psychological issues relating to the family in custody litigation. Relatively few understand the profound, and in many ways avoidable, psychological damage that their procedures 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 and practitioners (who may not even be licensed) has left the field open to unqualified people working ‘for profit,’ thereby excluding or exploiting the poor. (Attorneys use the term “indigent” which in effect excludes the large population of parents that are still very disadvantaged financially.) This is most likely to be true in the case of the mandatory 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.

  3. 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 one 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 sabotage the other on any and all decisions regarding the children.
  4. 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’, ‘borderline’, and “parental alienation syndrome.” Among those with a good deal of experience with the custody system, it is believed there may also 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.
  5. 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.
  6. 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 some disagreement about the value of the concept “parental alienation syndrome” (PAS)In fact, there are those in both fields who contend that PAS should be elevated to a formal diagnosis in DSM-V. (In my view it is fortunate that there is no time frame for the completion of this volume.) There is an entire spectrum of angry, retaliatory behavior toward the other parent beginning with occasional passive-aggressive maneuvers (e.g. intentionally delaying), ‘bad-mouthing’, and ‘little white lying,’ extending to gross forms of lying, manipulation, and deceit (e.g. requesting the intervention of Child Protective Services or supervised visitation of the other parent when there are no legitimate grounds to do so). On the other hand, parents who are aware of the importance of not telling the child critical things about the other parent, and who have carefully avoided it, have still been accused of PAS, which has then been cited by the court as grounds to deny custody to that parent.
  7. There is accuracy to the cliché that “whoever has the most money wins.” Women with little or no work experience, or who are having to live on some form of public assistance, have little to no chance in a custody battle. Latina women especially seem vulnerable to pressure and, in some cases, outright “bullying.”
  8. Many attorneys prohibit their clients, including the children, from seeing a psychotherapist lest it be exploited by the opposing attorney. The argument of the latter is that any record of having seen a therapist, even in years past, is evidence of that parent’s instability. It is particularly unconscionable to deny traumatized children access to professional help, but it is a common practice. Again, consideration is only given to traditional, formal legal practice where psychological understanding has no place.
  9. Law Guardians officially have the mandate to represent the child legally, but in practice many have boundary problems, e.g. they wander into making recommendations to the court based on their own untrained, personal ideas and biases under the guise of ‘what is best for the child.’ In many cases, the Law Guardian may have rare, if any, contact with the child even in a protracted litigation. The legal system has no required credentials and no policy of scrutiny to hold attorneys accountable.
  10. Legal practice tends to think only in terms of ensuring a parent’s right to access to the child, but there is little to no consideration for the child’s right to access (or right to limited or no access for his/her protection) to the parent. This is most blatantly an injustice in the mandate for a parent’s visitation with the child to be supervised. Supervised visitation is not licensed, regulated, or registered in any of the states. It is more often treated as a ‘glorified babysitting service’ when, in fact, there is a good deal of manipulation and acting-out by parents who are not held accountable for what is required of them. This is always at the expense of the child. In my view the family court system needs to require that LMSW’s and LCSW’s oversee all of these services, especially “therapeutic supervised visitation.”
  11. Counties and states, and certainly NYS, rarely provide funding for any form of follow up study or ‘research’. In all of the states and counties, any statistics are limited and superficial, so accurate numbers on families in custody litigation are simply not available. This may be a potential opportunity for social work doctoral programs, especially those that emphasize interdisciplinary and ‘systemic’ approaches.
  12. There is a very disturbing paucity of qualified attorneys willing to take on pro bono cases, even if it is toward the end of the litigation when a parent’s resources have been exhausted. Pro se (self-representation) efforts are often in vain because they are so difficult and time-consuming and require “skill sets” that many parents do not have.
  13. In a number of states (it is relatively new in NY) there is a new role sometimes called the Parenting Coordinator assigned after the final custody judgment to assist parents in intractable conflict to care appropriately for their children. There are varying views as to whether this role should be granted authority by the court to arbitrate when necessary. The consensus is that this is a field for only very experienced social workers and that interested professionals should begin with formal training in conflict resolution and mediation. The function of the Parenting Coordinator would serve as the court’s “safety net” for ongoing protection of the children. With this in place as a resource for high-conflict families, judges potentially might feel freer to expedite the handling of their enormous dockets of cases.

CONCLUSION

Helping families in custody litigation requires training, skills, and experience in the areas of

  • domestic violence
  • child abuse and sexual abuse
  • cross-cultural/immigration, racial and gender (including same-sex) issues
  • conflict resolution and mediation
  • multi-dimensional social services and psychosocial interventions for families in litigation
  • intergenerational issues, e.g. the “rights” of grandparents
  • research efforts emphasizing followup/longitudial/”outcome studies” which traditionally (e.g., adoption) has always been a priority for social work
  • children with special needs
  • knowledge of and coordination with community services
  • understanding and commitment to helping families of limited means

All of the above are the distinct domain of professional social work with its historical roots in broad-based service-on-the-front-lines, and with its dedication to working toward broad systemic change.

Post Script: I do not in any way discount the exceptional lawyers, judges, forensic evaluators, and many other unsung heroes, whose overall priority is steadfastly the welfare of the children. Efforts at court reform are underway but it will be a long, drawn out struggle throughout the twenty-first century. The profession that is the best “match” to assist the court with the enormous and diverse range of family problems is social work.