About Family Reports by Beatrice Melita MAPS, Barrister
The Family Law Amendment (Shared Parental Responsibility) Act 2006 that came into operation on 1 July 2006 has made significant changes to the way Courts will deal with children's cases. They will affect psychologists working in the Family Law jurisdiction in two ways. Firstly psychologists need to be aware of the changes in the legislation and how the Courts will be making decisions concerning children. Secondly, the changes may affect the quantum of work psychologists in private practice receive in future, although whether it is affected and if so how much, is as yet uncertain.
The changes include: changes in terminology; the inclusion of presumptions in defined circumstances; changes to the matters to be considered when determining the child's best interest; changes in the manner children's cases will be heard and managed in the Family Court; and changes to the rules of evidence in children's cases. Changes in terminology
Earlier terminology used in children's orders were guardianship, custody and access and these were subsequently changed to long term responsibility for the child's care, welfare and development, residence and day to day responsibility for the child's care, welfare and development and contact, respectively.
In making parenting orders, from the 1st July 2006, the new terms will be "duties and responsibilities concerning the care, welfare and development", and parental responsibility is defined to mean all the duties, powers, responsibilities and authority which by law parents have in relation to children (s61B). Residence is changed to "live with" (s65M) and contact is replaced by "spend time with" (s65N) and "communicate with" (s65NA).
The child representative is now called the "independent children's lawyer" and family court counsellors and mediators referred to as "family consultants". Introduction of presumption of equal shared parental responsibility
Until the current changes, the law had been that unless a Court order specified differently, both parents had the long term responsibility for the child's care, welfare and development. The practice in family law cases has been that unless there was good reason to eliminate one parent from the long term responsibility, both parents remained responsible for the child's long term care, welfare and development. The long-term responsibility is distinguished from residence or the living arrangements for the child, this now being referred to as the parent with whom the child lives.
The Act is now explicit that each of the parents of a child has parental responsibility and it is not affected by changes in the relationship (s61C). A parenting order confers responsibility for a child on a person, but only to the extent to which the order confers on the person the duties, powers, responsibilities or authority in relation to the child. Further, a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent expressly provided for in the order or necessary to give effect to the order (s61D).
The major change now introduced into legislation is the rebuttable presumption of equal shared parental responsibility and the consequences that flow in relation to the amount of time the child spends with each parent when the parents have equal shared parental responsibility. Rebuttable presumption
The Court must now apply the presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility (s61DA(1)). The presumption does not apply, that is the presumption is rebuttable, if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of a child) has engaged in (s61DA(2)):
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence;
Further, the presumption does not apply (that is, it may be rebutted) if it would not be appropriate in the circumstances (s61DA(3)) and if it would not be in the best interest of the child (s61DA(4)).
Family violence is defined as conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety (s4(1)).
Equal, substantial and significant time
Where a parenting order provides for equal shared parental responsibility, the Court must consider whether the child spending equal time with each parent is in the child's best interest and reasonably practical, and if it is, consider making an order for the child to spend equal time with each of the parents (s65DAA(1)). If equal time is not ordered then the Court must consider whether the child spending substantial and significant time with each parent is in the child's best interest and reasonably practical (s65DAA(2)). Substantial and significant time is defined to include weekends, holidays, weekdays, involvement in daily routine, significant events and days of special significance (s65DAA(3)).
Matters which the Court must have regard to in determining whether it is reasonably practical for a child to spend equal time or substantial and significant time include the distance between the parents, their current and future capacity to spend the time with the child, communicate with each other and resolve difficulties, and the impact of the arrangement on the child, as well as other matters the Court considers relevant (s65DA(5)). The notation following this section explains that "other matters" may include behaviour of a parent relevant to determining the best interest of a child which is found in s60CC(3), including the willingness and ability of the parent to facilitate and encourage a close and continuing relationship with the child and the parent's attitude to the child and responsibilities of parenthood. It also notes that in relation to the parents' future capacity, the Court has power under section 13C to order parties to attend counselling and various other programs.
Effect of parenting order that provides for shared parental responsibilities; and no need to consult on issues that are not major long-term issues
The Act now makes explicit that which had been the practice, that is, that parents who share parental responsibilities for a child that includes long-term issues, requires each of the parents to consult the other in relation to the decision to be made and to make a genuine effort to come to a joint decision about the issue (s65DAC)). Major long-term issues are defined (s4(1)) as being of a long-tern nature including education, religion and cultural upbringing, health, name and changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
It further specifies that there is no obligation to consult on issues that are not major long-term issues. The parent with whom the child is spending time and who has or shares parental responsibility, is not required to consult the other parent about decisions that are made in relation to the child during that time, on issues that are not major-long term issues unless so specified in a parenting order (s65DAE). The notation gives two very basic and self evident examples; what the child eats or wears as usually not being major long term issues. Psychologists working with children
Importantly for psychologists, and others providing services for children, section 65DAC(4) adds that "To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly". The APS is currently developing guidelines for working with children and one of the issues which the guidelines will address is whether a psychologist has the responsibility to ensure that the consent of both parents is obtained prior to providing psychological services for the child. The legislation makes it clear that "any other person" is not required to establish that the decision was jointly made. The APS guidelines, when promulgated, will provide guidelines on the circumstances and approach expected of psychologists when working with children and in particular when providing services to children of separated parents on the request of only one parent. Objects and underlying principles (s60B)
The objects have been expanded by specifying four objects and state that they are to ensure that the best interests of children are met by ensuring that children have the benefit of both parents to the maximum extent consistent with the best interest of the child, protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, ensuring that children receive adequate and proper parenting to help them achieve their full potential, and ensuring that parents fulfil their duties and responsibilities (s60B(1) emphasis added). I have highlighted the protection from harm aspects of the objects because the issue of family violence and abuse appears to have been given some prominence by its inclusion in the objects and in various other parts of the legislative changes. The principles underlying the object are similar (although not exactly the same): except when it is contrary to the child's interest, children have a right to know and be cared for by both parents, spend time and communicate on a regular basis with both parents and others including grandparents and other relatives, and that parents jointly share responsibilities and should agree about future parenting. It should be noted that grandparents and relatives now appear in the principles and a fifth principle has been added, that children have a right to enjoy their culture.
How a court determines what is in a child's best interest
Psychologist will have been aware that the factors to be taken into consideration in determining what is in the child's best interest, were previously contained in section 68F(2). These factors have changed and are listed in s60CC under two major headings, primary considerations (s60CC(2)) and additional considerations (s60CC(3)). The explanatory memorandum accompanying the legislation at paragraph 51, notes that there may be instances where the secondary considerations may outweigh the primary considerations.
The primary considerations (s60CC(2)) are (a) the benefit to the child of having a meaningful relationship with both parents, and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The additional considerations (s60CC(3)) are:
(a) views expressed by the child and any factors (such as maturity or level of understanding) relevant to the weight it should be given;
(b) the nature of the relationship with parents and others (including grandparents or other relatives of the child);
(c) willingness and ability of parents to facilitate, encourage a close and continuing relationship with the other parent;
(d) the likely effect of any changes in the child's circumstances and separation from parent(s) and others;
(e) practical difficulties and expense;
(f) the capacity of each of parents and any other person to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the parents and any other characteristics of the child the court thinks are relevant;
(h) if the child is an Aboriginal or a Torres Straight Islander and the right to enjoy the culture and impact of the parenting order on that right;
(i) attitude to the child and responsibilities of parenthood;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if the order is a final order or the making of the order was contested;
(l) order least likely to lead to further proceedings;
(m) any other fact or circumstance the court thinks is relevant.
The Court must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, has taken or failed to take the opportunity to participate in making decisions about major long-term decisions, to spend time and communicate with the child; has facilitated or failed to facilitate the other parent in making long term decisions, spending time and communicating with the child; and has fulfilled or failed to fulfil the parent's obligation to maintain the child (60CC(4)). In considering whether the parents have fulfilled or failed to fulfil his or her responsibilities, the Court must also have regard, in particular to events that have happened and circumstances that have existed, since the separation has occurred (s60CC(4A)).
The legislation now places emphasis on conduct about fulfilling parental responsibilities, in particular, post separation including whether the parent has maintained the child. Until now, the question of child support has been separated from whether a child has contact with the other parent, although this financial issue has not in the past been ignored in disputes about the distance to be travelled for contact change over and which parent should bear the consequent costs. The obligation to maintain the child is now one of the matters to be considered in determining the best interests of the child.
Psychologists will note other changes, such as in s60CC(3)(a) where "wishes" of the child has now been replaced by "views expressed by the child". It is to be noted that the legislation also clearly states that children are not required to express views in relation to any matter (s60CE). Most psychologists would have in any event reported the views of the children as well as any other observations of the child's behaviour and comments during assessment. It is expected that competent psychologists when dealing with young children would not simply interview them but that other forms of assessments are employed. In more recent years, I have noted a trend in some family reports, that younger children, even as young as 5 years old, are only being interviewed without the psychologist or counsellor also undertaking a proper assessment using various other methods such as play, dolls, drawings and the like. Such reports do the children an injustice and appear to indicate that the writer is either taking short cuts or does not have the skills to undertake a proper assessment.
Protection from violence more explicit
The new legislation is more explicit about the relevance and implications of family violence and abuse of children. This aspect is now mentioned in a number of areas: the objects of the Act (s60B); the presumption of equal shared responsibility does not apply if the parent or someone living with the parent has abused the child or another child in the family or other person's family (s61DA(2)); it is one of two "Primary considerations" in determining what is in the child's best interest (60CC(2)); and again reiterated in the "Additional considerations" of what is in the child's best interest at both subsections 60CC(3)(j) and (k). There is also a new provision, section 60K, where the Court must take prompt action in relation to allegations of child abuse or family violence. The outcome of research about the adverse effects of family violence whether it was directed at the children or whether the children were exposed to it as observers or exposed to the consequences on the victim, is now well known. Unfortunately some family reports are not explicit about the implications of family violence on the children and fail to take this into account in recommendations about contact (the time the children should spend with the parent). The problem also arises when children are inarticulate or unable to explain their reluctance to have contact (spend time) with the non resident parent (the parent with whom they do not live). The implications of family violence and abuse should be clearly addressed in family reports, as this has always been a relevant consideration in determining the children's best interest. I would suggest that there is now greater reason to do so as a result of the changes to the legislation.
Some rules of evidence do not apply
The rules of evidence in children's cases have been changed. Some rules of evidence do not apply including hearsay and opinion evidence unless the court decides to apply them in exceptional cases and if other requirements are also met (s69ZT). The Court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the relaxation of the rules of evidence. While the rules of evidence may not have been overly relevant to psychologists in the past when preparing family reports because children's hearsay evidence is admissible (s69ZV) and a psychologist's opinion is also admissible as expert evidence, it is perhaps now more important for psychologists to be prudent about their procedures and assumptions about facts when preparing family reports. Firstly, psychologists should ensure that procedures for interviewing the parties and relevant others are fair and balanced. Secondly, psychologists should ensure that statements and allegations made by one side are checked with the other side and that each of the parties, children and where relevant, others, are given the opportunity to respond and give their version of the events or allegations. If a psychologist reports an issue or event it is important to ensure that both parties have had the opportunity to present his or her version of the event and both versions are thus reported. Even the setting out of the background to the case needs to be balanced and the facts reported by the psychologist should not be based on a version given by one side. Assumptions made about facts even at the beginning of a report, such as in the background, can lead to skewed reporting of subsequent facts and erroneous conclusions. Whilst this seems self evident, it is easily done and many experienced psychologists or counsellors (now called family consultants) have made this error. It can lead to perceptions of bias. Complaints to the relevant Registration Board can also follow, as many psychologists have found, where either the procedures have been unfair or the psychologist has wrongly assumed facts and these have lead to grievances by one of the parties.
Family dispute resolution
One of the more publicised features of the changes is the Family Dispute Resolution Centres and compulsory family dispute resolution before filing an application with the court (there are exceptions such as in the case of abuse). There is a general requirement for counselling before any parenting order is made (s65F) (proceedings for a parenting order includes enforcement proceedings s65F(4)) except in urgent cases or special circumstances such as family violence, it is not practicable or parenting orders are made by consent. Compulsory family dispute resolution is to be implemented in several stages extending over several years and family dispute resolution certificates are to be provided by a family dispute resolution practitioner (s60I). Not only must parties attend but they are expected to make a genuine effort to resolve the issues and if not, the certificate will be issued with the notation that the person did not make a genuine effort to resolve the issue. It is to be hoped that family dispute resolution practitioners exercise this power sensibly.
Less Adversarial procedures
In addition to the changes to the rules of evidence, the new legislative provisions are intended to empower the Court to hear children's matters in a less adversarial manner. The new Division 12A describes principles for conducting child-related proceedings. The Family Court will be using the procedures already trialed in the Children's Cases Program that includes a family consultant (formerly known as Family Court counsellors or mediators) being designated (s69ZS) to be involved in a case from its inception. The role of the family consultant will also be to meet with the parties and the children and where appropriate provide a report to the court. The same Judge will be involved and the Judge is able to directly question the parties.
Child's best interest remains the paramount consideration
The child's best interest remains the paramount consideration despite the changes and apparent emphasis on equal parental responsibilities and shared parenting. No legislation about children could do otherwise. Psychologists continue to have the responsibility to apply their psychological knowledge and training, using psychological theories, research and principles about children's attachment, children's development and needs, family dynamics and relationships within the family, the impact of family violence and abuse, the mental health of each of the members, children's views or wishes and other relevant psychological issues, in accordance with their specialised scientific training. It is then for the Court to apply the psychologist's findings to the criteria set down by the legislation. For example, there are sound psychological reasons about attachment for concluding that it is not in the best interests of a child, if the child is an infant, to have equal time with the infant's non-primary carer. Such a conclusion by a psychologist is consistent with the new provisions because equal, substantial or significant time spent with the parent must still be predicated on the arrangement being in the child's best interest. Psychologists should not feel constrained by the matters iterated nor the weight to be given to them by the legislation, and should form their own judgment on the relevant issues based on their studies, training and experience. The proviso is that the psychologist ensures that in making an assessment of the children and family, all the relevant issues have been properly assessed and included in the summation, conclusions and recommendations.
The future for psychologists
For psychologists working in private practice and providing family reports to the Family Court and the Federal Magistrate's Court, the long term future may be a little uncertain. So far and for the short term future, reports commissioned by agreement by both parties are still being sought and being used in court. The legislation continues to provide for reports to be sought by the child representative under subsection 62G(2) (s60CD). Family consultants are to be used by the Family Court in all cases whose applications are made after the 1 July 2006. However, given the volume of cases which come before the two Courts, it is likely that psychologists in private practice will continue to be required to provide family reports in the future.
When Judges get it wrong it can ruin lives …………………
Most people, including attorneys, believe that Family Law Judges will always make legal rulings consistent with the law and with common sense. Not so! Even experienced Family Law Judges sometimes make legal rulings that can literally ruin lives.
I believe that sometimes this occurs out of ignorance, and sometimes because the Judge believes that it is “fair” to make a bad ruling, and figures that the aggrieved party won’t go through the expense or trouble of filing a legal appeal (essentially, a request for relief from a bad judgment).
Just this week a very experienced Family Law Judge in a large Northern California county (let’s call him or her “Judge X”) made a shocking ruling: in essence, he or she ordered that a house, which was “upside-down” (worth less than the mortgage) be awarded to one spouse as her sole property, while at the same time ordering that the other spouse remain on the mortgage indefinitely!
Sometimes this is appropriate when there are special-needs children that would be harmed if they lose their family home, but that wasn’t the case here.
Normally when one spouse wishes to “keep the house” they have to show two things to the court: first, that they can pay out to the other spouse their ownership interest in the house (either in cash or by trading items of equal value), and that they can refinance the underlying mortgage in their own name, or otherwise relieve the other spouse from liability for the mortgage.
Why? Because when my spouse gets the house, but my name remains on the mortgage, I am, in legalese, “jointly and severably liable” for the mortgage. This means if my spouse dies, the mortgage company comes after me for 100% of the mortgage. If my spouse files bankruptcy, the mortgage company comes after me for 100% of the mortgage.
And if the house is “awarded” to my spouse, even though I bear the same risk, I don’t own the house: if by next year the house has gained in value, and now has a net value of $100,000.00, that all is the property of my spouse–I get none of it.
Further, if I am liable on the mortgage of my ex-spouse’s house, this will skew my debt-to-income ratio and make it all but impossible for most folks to ever get another home mortgage. Finally, if my ex-spouse fails to make even one mortgage payment on time–suddenly I have the dreaded “30-day late” entry on my credit report, which will instantly wreck my credit rating in most cases.
That is what makes Judge X’s ruling so wrong: one spouse gets all of the benefit of house ownership, while the other spouse gets no benefits, or ownership rights, but bears all of the same risk as spouse number one. It’s like being forced into a business partnership where you get no profit, and no equity if the business is ever sold, but you are 100% liable for the debts!
This is a good example of the risks you run when you put your future, and the future of your family, in the hands of a Family Law Judge, even when he or she is a well-qualified, well-regarded judicial officer–you never know when ignorance, or a personal bias or conviction, can work an injustice.
by Bill Woodcock, Attorney
Personality Disorders and how they drive Family Court Cases by Bill Eddy
I was first exposed to the concept of personality disorders in 1980 when I was in training as a therapist at the San Diego Child Guidance Clinic at Childrens Hospital. The DSM-III had just come out and Axis II of the five diagnostic categories required the therapist to diagnose the presence or absence of a personality disorder. (The current DSM-IV uses the same approach.) I quickly learned (often the hard way) that the presenting problems on Axis I (e.g. depression, substance abuse) were simply replaced by new ones, if an underlying personality disorder was not addressed in therapy.
Now that I have completed several years as a family law attorney, I have frequently witnessed the same underlying issues in hotly contested family court litigation - yet these remain undiagnosed and, therefore, misunderstood. As those with personality disorders generally view relationships from a rigid and adversarial perspective, it is inevitable that a large number end up in the adversarial process of court. Since more flexible and cost-conscious people nowadays are resolving their divorces in mediation, attorney-assisted negotiation, or just by themselves, those cases remaining in litigation may be increasingly driven by personality disorders.
The Nature of a Personality Disorder
Someone with a personality disorder is usually a person experiencing chronic inner distress (for example fear of abandonment), which causes self-sabotaging behavior (such as seeking others who fear abandonment), which causes significant problems (such as rage at any perceived hint of abandonment) - in their work lives and/or their personal lives. They may function quite well in one setting, but experience chaos and repeated problems in others. They look no different from anyone else, and often present as very attractive and intelligent people. However, it is usually after you spend some time together - or observe them in a crisis - that the underlying distress reaches the surface.
As interpersonal distress, fear of abandonment, and an excessive need for control are predominant symptoms of personality disorders, they place a tremendous burden on a marriage. Therefore, intense conflicts will eventually arise in their marriages and the divorce process will also be a very conflictual process. In contrast to people who are simply distressed from going through a divorce (over 80% are recovering significantly after 2 years), people with personality disorders grew up very distressed. It is the long duration of their dysfunction (since adolescence or early adulthood) which meets the criteria of a personality disorder.
Usually they developed their personality style as a way of coping with childhood abuse, neglect or abandonment, an emotionally lacking household, or simply their biological predisposition. While this personality style may have been an effective adaptation in their family of origin, in adulthood it is counter-productive. The person remains stuck repeating a narrow range of interpersonal behaviors to attempt to avoid this distress.
A personality disorder does not usually go away except in a corrective on-going relationship - such as several years in a counseling relationship. Until then, the person may constantly seek a corrective experience through a series of unsatisfying relationships, through their children, or through the court process. In a sense, untreated personality disorders don't fade away they just change venue.
Personality Disorders Appearing in Family Court
Probably the most prevalent personality disorder in family court is Borderline Personality Disorder (BPD) - more commonly seen in women. BPD may be characterized by wide mood swings, intense anger even at benign events, idealization (such as of their spouse - or attorney) followed by devaluation (such as of their spouse - or attorney).
Also common is Narcissistic Personality Disorder (NPD) - more often seen in men. There is a great preoccupation with the self to the exclusion of others. This may be the vulnerable type, which can appear similar to BPD, causing distorted perceptions of victimization followed by intense anger (such as in domestic violence or murder, for example the San Diego case of Betty Broderick). Or this can be the invulnerable type, who is detached, believes he is very superior and feels automatically entitled to special treatment.
Histrionic Personality Disorder also appears in family court, and may have similarities to BPD but with less anger and more chaos. Anti-social Personality Disorder includes an extreme disregard for the rules of society and very little empathy. (A large part of the prison population may have Anti-social Personality Disorder.)
Dependent Personality Disorder is common, but usually is preoccupied with helplessness and passivity, and is rarely the aggressor in court - but often marries a more aggressive spouse, sometimes with a personality disorder.
Cognitive Distortions and False Statement
Because of their history of distress, those with personality disorders perceive the world as a much more threatening place than most people do. Therefore, their perceptions of other peoples behavior is often distorted - and in some cases delusional. Their world view is generally adversarial, so they often see all people as either allies or enemies in it. Their thinking is often dominated by cognitive distortions, such as: all-or-nothing thinking, emotional reasoning, personalization of benign events, minimization of the positive and maximization of the negative. They may form very inaccurate beliefs about the other person, but cling rigidly to those beliefs when they are challenged - because being challenged is usually perceived as a threat.
People with personality disorders also appear more likely to make false statements. Because of the thought process of a personality disorder, the person experiences interpersonal rejection or confrontation much more deeply than most people. Therefore the person has great difficulty healing and may remain stuck in the denial stage, the depression stage, or the anger stage of grief - avoiding acceptance by trying to change or control the other person.
Lying may be justified in their eyes - possibly to bring a reconciliation. (This can be quite convoluted, like the former wife who alleged child sexual abuse so that her ex-husbands new wife would divorce him and he would return to her - or so she seemed to believe.) Or lying may be justified as a punishment in their eyes. Just as we have seen that an angry spouse may kill the other spouse, it is not surprising that many angry spouses lie under oath. There is rarely any consequence for this, as family court judges often believe the truth cannot be known or that both are lying.
Projection
Just as an active alcoholic or addict blames others for their substance abuse, those with personality disorders are often preoccupied with other peoples behavior while avoiding any examination of their own behavior. Just as a movie projector throws a large image on a screen from a hidden booth, those with personality disorders project their internal conflicts onto their daily interactions - usually without knowing it. All the world is a stage - including court.
It is not uncommon in family court declarations for one with a personality disorder to claim the other party has characteristics which are really their own (hes manipulative and falsely charming or shes hiding information and delaying the process), and do not fit the other party. Spousal abusers claim the other is being abusive. Liars claim the other is lying. (One man who knew he was diagnosed with a Narcissistic Personality Disorder claimed his wife also had an NPD simply because she liked to shop.)
How Family Court Fits Personality Disorders
Family Court is perfectly suited to the fantasies of someone with a personality disorder: There is an all-powerful person (the judge) who will punish or control the other spouse. The focus of the court process is perceived as fixing blame - and many with personality disorders are experts at blame. There is a professional ally who will champion their cause (their attorney - or if no attorney, the judge). A case is properly prepared by gathering statements from allies - family, friends, and professionals. (Seeking to gain the allegiance of the children is automatic - they too are seen as either allies or enemies. A simple admonition will not stop this.) Generally, those with personality disorders are highly skilled at - and invested in - the adversarial process.
Those with personality disorders often have an intensity that convinces inexperienced professionals - counselors and attorneys - that what they say is true. Their charm, desperation, and drive can reach a high level in this very emotional, bonding process with the professional. Yet this intensity is a characteristic of a personality disorder, and is completely independent from the accuracy of their claims.
What Can Be Done
Judges, attorneys, and family court counselors need to be trained in identifying personality disorders and how to treat them. Mostly, a corrective on-going relationship is needed - preferably with a counselor. However, they usually must be ordered into this because their belief systems include a life-time of denial and avoidance of self-reflection.
Some courts may order up to one year of counseling for parents, if: (1) The dispute between the parents or between a parent and the child poses a substantial danger to the best interest of the child. [or] (2)The counseling is in the best interest of the child. Even short-term counseling can help.
Therapists, in addition to being supportive, need to help clients challenge their own thinking: about their own role in the dispute; about the accuracy of their view of the other party; and about their high expectations of the court. Further, therapists should never form clinical opinions or write declarations about parties they havent interviewed.
Likewise, attorneys need to also challenge their clients thinking and not accept their declarations at face value. More time should be spent educating them to focus on negotiating solutions, rather than escalating blame. The court should make greater use of sanctions under Family Code Section 271 for parties and attorneys who refuse to negotiate and unnecessarily escalate the conflict and costs of litigation.
The court must realize that the parties are often not equally at fault. One or both parties may have a personality disorder, but that does not necessarily mean both are offenders (violent, manipulative, or lying). A non-offending, dependent spouse may truly need the courts assistance in dealing with the offender. The court should not be neutralized by mutual allegations without looking deeper. Otherwise, because of their personality style, the most offending party is often able to continue their offender behavior - either by matching the others true allegations for a neutral outcome, or by being the most skilled at briefly looking good and thereby receiving the courts endorsement.
The court is in a unique position to motivate needed change in personal behavior. In highly contested cases, counseling or consequences should be ordered. Professionals and parties must work together to fully diagnose and treat each persons underlying problems, rather than allowing the parties (and their advocates) to become absorbed in an endless adversarial process. Because their largest issues are internal, they will never be resolved in court.
