A Mental Health Professional’s Argument For Reform In The Family Court Process: Blog 1

Family Court and the Mental Health of Children

Most of the current research on child development emphasizes the absolute importance of the attachment and bonding process on healthy maturity. Breaches in the attachment process, particularly lengthy and pathological ones, have a devastating effect on the emotional, relational, and neurological growth of children. Divorce is the most frequent form of attachment disruption for children. When a divorce occurs, the child is thrust into a situation where the constancy of their attachment relationships with parents is disrupted. At a deep neurological level, disruptive detachment generates trauma, which leaves the child feeling unsafe, confused, disoriented, and often hinders significant aspects of the developmental process. When, on top of the attachment disruptions of divorce, the child is significantly separated from a bonded relationship with one parent, the negative effects are exponentially accelerated. 

The complicity of a parent, and even the family court process, in the unnecessary attachment separation from the other parent is child abuse. Child abuse is any unwanted intrusion into a child’s life that generates trauma. Trauma, as many studies have shown, generates a dysregulation of a child’s ability to stay present and focused on the developmental challenges of maturing. Pre-occupation of a child on the loss and rupture of a previously close and connected attachment with a parent significantly hijacks the child’s neurological capacity to stay calm, and therefore, capable of the focus and attention needed to cope with developmental challenges. So, thinking of child abuse, a separation that is unnecessary is the imposition on a child of traumatic challenges that they do not deserve. In the case of divorce, children do not want or deserve the destructive consequences of a prolonged detachment from a parent. 

When the concept of un-necessary detachment is discussed, it focuses on the fact that children should not have to experience the trauma of detachment unless it is unavoidable. An example of an unavoidable detachment would be the death of a parent. This detachment is permanent and uncontrollable. But, in divorce, if, due to the decisions of either a family court, or, an alienating parent, the detachment is forced on the child due to the interests of others, this is child abuse. To reiterate, child abuse is inflicted on a child by the emotional needs of others. A parent that lacks their own self-regulating ability, will often seek to resolve their emotional needs by inflicting pain on a child.

There are two large areas where unnecessary detachment occurs. First is when the family courts, who are often woefully unaware of the traumatic impact of detachment, generate parenting decisions that by their nature inflict significant loss of attachment on one of the primary parents. Courts look at divorce primarily as a legal resolution of the dissolution of a family unit and are not always sensitive to the intense and traumatic disruption of the regulatory process of a child in development. 

Children do not ask to be divorced from either parent. Even aside from the clearly unconstitutional violations of a parent’s and child’s right to equal access, the empirical research supports the fact that it is in the best interests of a child to maintain equal involvement with both parents. Courts and judges are often unaware of the developmental research on best interests. But, as the saying goes, innocence is not an excuse. Particularly when that lack of knowledge has so devastating an effect on innocent children. 

Courts are designed to litigate and almost treat the divorce process on a par with the criminal court adversarial design. Lawyers are trained to litigate, and so they see divorce as primarily a legal resolution. Mental health professionals see divorce as a primarily relational and emotional process that needs to be resolved in the least intrusive way that preserves the essential emotional needs of both the divorcing parents and the children. The family court process often creates a worst-case scenario that inflicts huge degrees of trauma and stress on all members of the family. Divorce attorneys often see divorce through the lens of adversarial resolution, where a zero-sum strategy is used to win. It is clear to me that money is a huge mitigating factor on who gets a favorable outcome, and so attorneys can manipulate vulnerable divorcing parents to fight to win. 

The most vulnerable members of the divorcing family are children, who deeply love both parents and do not win when they are deprived of one of their parents. The least destructive disruptions of divorce are when the parents separate, but the child can maintain at least an equal ability to stay attached to each parent. Courts who minimize the impact of this are complicit in child abuse. It is unnecessary to make the child divorce a parent, and so, as has been discussed, unnecessary detachment inflicts trauma on a child and is child abuse. 

There are, in fact, necessary reasons that an unequal level of attachment might be good for a child. This occurs when a parent is demonstrably found to be a danger to a child. The court, for a long time, has allowed unsubstantiated stories about the child abuse of one parent towards a child. These often result in bogus orders of protection or no contact orders which are the weapons often of an alienating parent (discussed in next blog post). Obviously if a parent is so impaired that they inflict more damage on a child then the benefits of attachment, the child must be protected. But absent clear and convincing evidence (not just the hearsay of a targeting parent) the bias must always be on the side of the overwhelming benefit of equal attachment to both parents. That is why I strongly favor legislation that would, again in the absence of clear and convincing endangerment, automatically give the parents equal time. 

In the years that I have spent observing family court and family court attorneys and judges, it is clear to me that decisions are often made not on the merits of equal parenting attachment, but instead on other, far more subjective factors. Whichever parent has more money and can employ a more aggressive attorney often gets the more favorable outcome. I have seen behind the scenes collaboration between attorneys and judges who rule favorably in the direction of the attorney who contributes more to the judge’s election campaign or has an outside social relationship with the judge. These individuals would never admit this, but it happens frequently. 

Decisions can often also be the result of the subjective bias of judges. Historically the subjective bias of a judge has been in favor of the mother, based on the discarded baseless notion of the “tender years doctrine”. Some of the worst examples of subjective bias on the part of a judge is when their personal feelings about a parent color their capacity to rule in the healthy best interests of assigning equal parenting time to the parents. One memorable case that I have been witness to a father who, angry (and justifiably so) that his children were removed from him due to the obvious and arbitrary dislike of a judge toward the parent. Judges who are subjectively biased have personal pathology that goes unchecked. In this case the judge did not like the pushback that this parent gave to him and punished him by imposing a plenary order of protection judgement restricting him from contact from his children. This is not justice, but instead is the pathological imposition of rulings that punish a parent that the judge just does not like. Therefore, I am opposed to the absolute immunity that family court judges are given. This is often like giving immunity to a child molester and then letting him be a scout leader just because of the subjective bias of a judge. They need to be held accountable when they obviously demonstrate bias that results in rulings that absolutely stem from their personal, often narcissistic, need to show their power. The real victims are the children who have their constitutional and emotional rights to have equal access to their parents. 

When this unnecessary detachment of a child from a parent occurs, and it is the result of a subjective pathological bias of a judge, they need to be held accountable. When a judge does not have the empathic awareness that parents are vulnerable and traumatized and may often show anger due to this, the judge’s personal anger at the anger of a parent should not inflict the kind of trauma on innocent children. Anyone, who does not believe that many judges are human beings with personal histories that may involve their own pathology and bias, are fooling themselves. The concept of blind justice is often a joke in the family court. None of us should be blind to the unrecognized bias that filters our perception and decision making. Judges have no accountability to their own pathology. And children lose and so are subject to child abuse. 

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