Psychologists through the course of their work often come into contact with separating families through referrals of parents or children. Not all separating families, of course, require the family law system to deal with their disputes. There are many other avenues of assistance for parents to negotiate what can be a very difficult time in their family life. Psychologists without the necessary skills and experience in family law may in fact cause harm. Psychologists offering a therapeutic service to a child or parent, and often inexperienced in providing evidence in a legal setting, can be drawn into court disputes and unintentionally exacerbate the family conflict. Sometimes a factor in causing harm is a lack of acknowledgement that the information provided by one parent may be coloured by their motivations or emotions, and this can distort the practitioner’s capacity to understand the child’s situation.
Family law disputes are often messy and difficult with parents often caught up in a highly adversarial system that is emotionally and financially costly. The family law system regularly attracts a degree of criticism. There are many reasons for this and foremost is that, like any system, there are cracks, inconsistencies, problems and outright miscarriages of justice because no system is ‘perfect’. However, with family law disputes the criticisms are often accompanied by emotional arguments about the rights of children and the rights of parents.
While criticism often provides a foundation for improvement, some criticisms are unhelpful because they propagate myths, inconsistencies and common stereotypes that do not allow an appropriate conceptualisation of the problems leading to sensible and correct solutions.
Criticism of the family law system (and this article is not an exercise in rationalising or excusing the flaws in the system) often comes from one perspective only (usually one parent). Children’s perspectives are often obscured, even in situations purporting to convey the point of view of the child; for example, in the bulk of empirical research on separated families and outcomes for children the data is typically collected from the reports of only one parent (e.g., Amato, 1993; Cherlin et al., 1991; Dawson, 1996; Demo & Acock, 1996; Malone et al., 2004).
Psychological assessment in the Family Court system
Those whose professional practice involves providing psychological assessment and family reports in the role of a ‘single expert witness’ for the family law courts have a high level of expertise in working in court settings and know the value of hearing both sides as well as obtaining all other available information. The role of the psychologist is to provide factual and impartial evidence to the court. A consequence of this is that the information provided may not always benefit the client.
From the outside, a common misperception about the role of the single expert witness in the family court system is that it is focused on assessment of family relationships. This is not always the case. Sometimes relationships and particularly parent-child relationships are the focus of the assessment. At other times children have excellent, good or good enough relationships with both parents and the issue becomes about the least intrusive method of obtaining information about children. Sometimes, the parental allegations take precedence due to the implications of each parent’s account and what this might mean for the best interests of their children. These types of cases tend to be those where parents make mutual serious allegations about the other parent and the assessment becomes about psychological investigation into the validity of those allegations and/or an exploration of how a parents’ concerns are likely to affect the children. Often these allegations centre on claims of serious mental health problems, drug or alcohol abuse, or that a parent is violent and physically abusive, with both parents making similar allegations about the other.
It is easy to hear and be convinced by one parent’s account of their allegations and beliefs. It is also common to then take a completely different view when assessments are carried out on the other parent, the children and other significant family members, or when consideration is given to external information from police, child protection departments or affiliated others which add a completely different filter to what is known about the family. Sometimes the information gathered suggests that one parent’s allegations and beliefs appear to have more validity than the allegations and beliefs of the other parent. Sometimes doubt is cast on the allegations and beliefs of both parents. At other times, parents provide accounts that appear to be the narrative equivalent of two halves of a walnut that fit together almost perfectly to explain each parent’s perspective.
The child’s dilemma with parental conflict
Noting that many separated families manage to organise themselves and have little involvement in the family law system, however, there is another less understood factor in psychological assessments for the family law courts and that is, how children commonly behave in situations when their parents are highly adversarial.
When children are faced with a highly conflictual parental relationship, they have to deal with the cognitive and emotional implications of trying to resolve the differences between each parent’s position. Typically, when children have reasonable relationships with each parent prior to their parents’ separation, and parents provide disparate arguments, beliefs and positions after they separate, children show some emotional and/or cognitive disturbance. This occurs because children have poor critical-thinking skills as a general rule, and come from a position of trust that what their parents tell them is the ‘truth’. When parents provide disparate truths children then have to decide, consciously or unconsciously, how to deal with the overtly irresolvable dilemma facing them.
Some children are unable to resolve this dilemma and show behavioural, cognitive and emotional disturbance that is commonly reported in the divorce literature about the developmental implications for children in high-conflict families. Other children resolve this dilemma by choosing one parental ‘truth’ over the other parents ‘truth’. Sometimes this internal resolution causes children to behave one way with one parent and then in a completely different way with the other parent. A common observation in family law assessments is children who state firm opinions and express preferences for one parent, but then behave in a way with their other parent that completely contradicts their expressed opinions. This is why behavioural observations are such an important component of family law assessments. Children in these circumstances typically deny the contradictions in their behaviour but show a disturbance when their two worlds collide and they are unable to maintain their internal ‘split’ and the inconsistencies in their words and behaviour.
At the most disturbing level are the children that determinedly support the truth of one parent over the other parent. Sometimes this group of children can be confused with those who justifiably decide to reject a relationship with one parent for a variety of reasons, such as their past negative experiences with them. However, there are significant differences between children who have rational or even highly emotional reasons for rejecting a relationship with one parent, and those whose presentation represents an irrational rejection of one parental relationship because they cannot deal with the conflict between their parents and feel they must choose one over the other.
Psychologists and family disputes
Undertaking expert evaluations and providing recommendations to the family court is a highly skilled process that requires specialist knowledge, skills and judgement. One of the problems facing psychological practice occurs when practitioners who are not experienced in forensic work and do not have the required knowledge of the dynamics of separated families do not understand the different facets and presentations by children seen so commonly in family law disputes. Increasingly psychologists are finding themselves providing treatment to litigant parents and/or children involved in family disputes and as a consequence, being drawn into family court proceedings.
There has been a disturbing trend in family law cases where psychologist therapists have become advocates for parents in family law cases. Having only been able to garner information from one parent, and hence about one part of the complex family dynamics, they provide reports to courts that may be perpetuating harm to children and escalating the emotional and legal disputes. More common has been that a psychological assessment by an inexperienced practitioner has been discarded without challenge during the family law dispute process because all parties recognise that the practitioner has been naive and/or biased, although the psychologist may not be informed of this outcome and so unaware that their report has been deemed inappropriate and hence, inadmissible.
An auxiliary problem, of course, is that the practice and perception of psychology and psychological practice is devalued in the process. The naive psychologist blithely continues their practice unchallenged, and the courts take an increasingly negative view of the profession of psychology. This is of concern as psychologists with expertise in family law work can make an important contribution that can assist courts to determine what is in the best interests of children involved in family conflict.
Family law cases
The problems arising in psychology reports when only one parent is involved in a child or young person attending for psychological treatment can include underestimating the motivations that can be present for separating parents amidst a family law dispute.
The cases of Maher and Mills (2015) and Olssen and Wise (2014) show the complexities of understanding families and allegations of family violence. More importantly, they demonstrate how the account of one parent and a child that they bring to therapy may lead practitioners to promote conclusions that cannot be supported, and lead to damaging consequences for families and children in particular.
Taking an informed approach
Legal databases abound with cases where psychologists have gone well beyond failing to be impartial and act as advocates for clients. Often psychologists in this position are not required for cross-examination and their opinions are discarded without challenge because the flaws in their reasoning are obvious and blatantly exposed in the broader information before the Court. Unfortunately, this means that practitioners such as Dr M and Dr I return to their practice unaware of what has occurred, as the parent client no longer has any use for them.
The profession of psychology comes under reasonable criticism when psychologists proffer opinions that go beyond their knowledge or they take up a position of advocating for parents and/or children. Practitioners who see children whose parents are separated should be asking questions about how many sides there are and how they will not cause further harm in an already potentially delicate situation that can have the most serious and costly emotional, developmental, physical and financial implications for children, parents and families. A cautious approach suggests that consideration should be given to involving both parents or at least making an overture to the child’s other parent to be involved in any therapeutic contact with their child. At the very least, psychologists will likely be informed if they have any objections or there are legal restrictions in place that prevent taking on the child client.
Mathews (2015) provides excellent advice for psychologists who have been working in a treatment role and who are then asked to provide a report for Court including to:
- stay within your area of competence
- keep your professional judgement within the available information
- not draw conclusions about third parties that have not been part of your consultations
- understand that a court report entails responsibilities to the court that may be different from your responsibilities in a treatment role
- carefully consider issues of consent
- articulate limitations of your report, and, importantly,
- understand that court’s expect impartiality and objectivity – do not take on the role of client advocate.
These recommendations are especially important if your client is a child already caught up in emotional disturbance around their parents’ separation.
The author can be contacted at [email protected]
Maher & Mills (2015)
This matter involved a psychologist, Dr I, whose area of expertise included specialist research and practice with children and adolescents with behavioural issues and autism spectrum disorder. Dr I was found to have been providing a child with counselling that was counterproductive (i.e. taking unconfirmed allegations of sexual abuse as true and treating both child and mother simultaneously). Dr I was not cross-examined in the trial “because of the limited probative value of this evidence” (para. 146) and his opinions were found to be inadmissible as he had “lost professional impartiality” (para. 140) by accepting the mother’s version of events unquestioningly. His views were only considered in terms of how they informed/gave context to the mother’s perceptions. The mother was restrained from taking the children to counselling with Dr I.
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Olssen & Wise (2014)
In this case, the court described the situation of the children as “caught up in an appalling, almost ceaseless war between their parents” (para. 2). He noted the “small blizzard of affidavits filed thus far, including two from a psychologist [Dr M] filed on the father’s behalf” (para. 11). The evidence indicated that the father had made an appointment for one of the children to see Dr M and misled the mother about the appointment. Dr M held appointments with the father, the child client, and then with the client child’s siblings ostensibly to collect “collateral information” (para. 40). The Judge perceived that these actions had placed unfair pressure on all three children and that her opinions expressed as “my expert opinion [is] that [the child client] reside continuously with his father” (para. 48) did not meet criteria about expertise or establishing how her conclusions were drawn (para. 50). He was critical of Dr M and expressed doubts about her “processes” (para. 61). He was also critical of Dr M for apparently contributing harm to the children’s welfare. Both parents were restrained from taking the children to any healthcare professional without the prior written notice, and agreement of, the other parent, or order of the Court.
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