Article: The Psychiatrist’s Role in Divorce Custody Battles

By: William Bernet, M.D.

“Arnold” and “Betty” were married for 10 years and had two children. When they divorced, they could not agree on the custody and visitation arrangements for the children. Although they previously loved each other and still had sincere respect for each other, they were gearing up to make extremely angry allegations about each other in court.

When “Calvin” and “Dotty” divorced, Dotty had custody of their 6-year-old daughter and Calvin had regular visitation with her. Rather abruptly after an extended summer visitation with Calvin, the girl said her father was extremely mean to her and refused to go with him for her next scheduled visitation. Dotty accused Calvin of abusing the girl. Calvin accused Dotty of inducing parental alienation syndrome in the child.

These and dozens of similar scenarios come to the attention of both general psychiatrists and child and adolescent psychiatrists every day. There are approximately 1 million divorces in this nation each year. Since many of these divorces involve litigation over custody or visitation, it is common for both clinical psychiatrists and forensic psychiatrists to confront these issues in their work.

Clinical Practice

Even before parents anticipate their divorce, their child may already be seeing a psychiatrist or other clinician. Once the divorce is imminent, each parent’s first impulse is to ask the therapist to take that parent’s side in the ensuing custody dispute. The therapist may feel it is obvious that one of the parents should have custody of the child and may readily agree to send a report to the court or to testify. However, that path has many dangers and should be avoided.

Rather than try to influence the outcome of the custody dispute, it is better to simply continue as the child’s therapist and help the child cope with the changes in the family. After the parents separate and divorce, it will be particularly important for the therapist to communicate with and have a good relationship with both parents. That is unlikely to occur if the therapist has sided with one of the parents in an angry custody dispute.

The same principle applies if the psychiatrist treats one of the parents. That parent may ask the psychiatrist to testify on their behalf–for example, vouch for that person’s superb parenting skills, testify that the patient/parent was abused by the other parent, or testify that the parent’s mental illness is not so bad after all. It may happen that the psychiatrist is subpoenaed and must appear in court. If that occurs, it is probably best for psychiatrists to present themselves as “fact witnesses” (meaning that they would simply state what they know about the patient without offering opinions or conclusions) rather than “expert witnesses” (who give opinions, conclusions and recommendations). The goal, of course, is to keep distinct the psychiatrist’s role as a clinician and role as a forensic expert. It is almost always preferable to put these hats on separate heads.

Forensic Practice

If somebody–one or both parents or attorneys, or the judge–wants a psychiatric evaluation that will assist the court in deciding a custody or visitation dispute, the best practice is to arrange for an independent forensic psychiatric evaluation. In this context, independent means that the evaluation is done by a person who is not already the psychiatrist for one of the parties.

A psychiatric custody evaluation is not for everybody–the vast majority of parents who separate and divorce do not need an elaborate and costly evaluation. In most instances, thankfully, parents work these issues out between themselves or with the help of a mediator. Table 1 indicates the circumstances in which a forensic psychiatric custody evaluation may be indicated.

A forensic custody and visitation evaluation usually consists of psychiatric and/or psychological assessments of the child and both parents. There is no standard method for conducting custody and visitation evaluations. Many psychiatrists, psychologists and legal professionals have published on this topic (e.g., Bernet, 2002; Galatzer-Levy and Kraus, 1999). The American Academy of Child and Adolescent Psychiatry published a practice parameter on child custody evaluations (Herman, 1997). Table 2 provides the usual components of a psychiatric custody evaluation.

It is almost always assumed that decisions regarding custody and visitation are guided by seeking the best interests of the child. However, parents and attorneys may disagree and argue about exactly what constitutes the best interests of the child in their particular set of circumstances. There is no standard list of factors that should be taken into consideration and what weight should be given to each factor. Not only does each state have its own laws and precedents, but it is likely that evaluators and judges are influenced by their personal values when they make recommendations and hand down decisions in these cases. The factors that many legislatures, courts and mental health care professionals consider important are listed in Table 3.

Evaluation Issues

There are many issues that arise in forensic child custody and visitation evaluations that do not occur in a nonforensic clinical practice.

One-sided evaluations. In conducting a custody evaluation, it usually is best to have access to both parents, any stepparents and all the children. In other circumstances the evaluator might do a one-sided evaluation by interviewing only one parent and the child. For instance, the father might consult a psychiatrist and bring the child for evaluation, but the mother refuses to come to any appointment. In such a case, the evaluator may make limited observations and recommendations, such as commenting on the psychological condition of the father and the child and the nature of the attachment between them. An evaluator who had only seen the father and child would usually not be able to make any recommendations regarding custody because they would have no way of comparing the mother with the father. If a psychiatrist has been asked to conduct a one-sided evaluation, it is important to determine whether the parent who is bringing the child actually has the authority to authorize the evaluation.

Assessing attachment. The psychiatrist should be able to assess the child’s relative attachment to the two parents. This is important because the child’s attachment is an issue that the average judge is not able to determine through ordinary testimony in court. The psychiatrist has access to many sources of data that relate to the child’s attachment, including information collected from parents and stepparents and observing the child together with each parent. In interviewing the child, the psychiatrist may determine the child’s perception of the parents through direct questions (“Who helps you best with your homework, your Mom or your Dad?”), indirect questions (“Tell me the things you like and the things you don’t like about your Mom.”) and projective questions (“Let’s make up a story about a baby bird that lives in a nest with a mommy bird and a daddy bird.”). The child’s attachment to the parents can also be assessed through psychological tests such as the Family Relations Test (FRT), the Bricklin Perceptual Scales (BPS) and the Perception-of-Relationships Test (PORT) (Bricklin, 1995).

Indoctrination and alienation. Mental health care professionals have noticed that children of divorce may greatly favor one parent over the other and may greatly resist visiting the nonresidential parent. There are several possible explanations for the child’s active rejection of visitation, including: abuse or neglect by one parent, so it is natural that the child would not want to visit that household; purposeful or accidental indoctrination of the child to favor one parent and reject the other parent; and/or the child is caught between battling parents and the tension in the child is resolved by believing that they love one parent and hate the other. Gardner (1998) used the term “parental alienation syndrome” for some of these cases, specifically, those in which one parent has consciously or unconsciously induced the child to reject the other parent.

Joint legal custody and parenting plans. In joint legal custody, both parents have equal rights and responsibilities regarding issues such as the child’s education, medical care and religious upbringing. Joint legal custody works if the parents are able to communicate with each other and are willing to take each other’s opinions into consideration. The laws of some states strongly favor joint legal custody; the laws of a few states limit it by requiring consent of both parents before joint custody can be ordered. On the other hand, some states have laws that favor or require parenting plans. Both concepts–joint custody and parenting plans–envision that children of divorce should be nurtured and raised by both parents. Although the operational outcomes may look the same, these are different concepts. Joint legal custody emphasizes the legal end result (i.e., the judge orders the parents to share certain rights and responsibilities). The concept of parenting plans emphasizes the process by which divorcing parents sit down and work out an agreement regarding important aspects of their child’s life. In some states that require parenting plans, the terms custody and visitation are no longer used, but the laws simply refer to each person’s “parenting time.”

Summary

Divorce is common, so it is important to find ways to minimize the psychological trauma that is experienced by children of divorced parents. Ideally, divorcing parents would not fight so much over the children, in front of the children and through the children. When disputes do arise regarding custody and visitation, mental health care professionals can inform and assist judges by performing competent custody evaluations. These evaluations should be conducted in a systematic and unbiased manner, should consider the critical factors that are relevant to the court, and should result in recommendations that promote the best interests of the children. Almost always, the goal is for the children to have strong, healthy relationships with both parents. It is usually possible to make recommendations regarding custody, parenting arrangements, and forms of counseling and therapy that will be helpful to the family members.

Dr. Bernet is professor of psychiatry and director of the division of forensic psychiatry at Vanderbilt University School of Medicine.

Psychiatric Times December 2004
Vol. XXI | Issue 14

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