Herman Gill, Ph.D.
September 11, 2014

While the United States may be characterized globally as having a national shadow of excessive materialism, decadence, and militarism, Americans are also known for their uncanny ability to recognize deception and rise to action in response to a direct challenge to human freedom. In this context, child custody litigation, played out over and over again in family court jurisdictions across the United States, have begun to evoke growing public outrage, increased political outcry, and serious scientific scrutiny.

In family courts throughout this country, ritualistic transactions and emotional drama cloak highly destructive and lethal court games seldom in the best interest of a child. These Kafka-like scenes (now common in other countries as well), are caused not simply by the dynamics of divorce but by the traumatic “interventions” of the court. If family court in the United States “protects” our children in divorce, who protects our children from the family court?

Childhood and adolescent problems caused by the forced separation and loss of a parent in divorce due to biased custody assessments and misguided parenting plans has reached pandemic proportions. Several years ago, a colleague described how a twelve years-old male, in a high tension divorce, despondent in response to the forced separation from his father, simply went home one day from school and hanged himself.

FAMILY COURT LETHALITY

These are not isolated cases, although personal isolation and legitimized court dysfunction do combine to ignite countless daily tragedies that have now gone viral:

1. Martin Romanchick, a New York City Police Officer and Medal of Honor recipient, hanged himself after being denied any access to his children and being arrested 15 times on contrived allegations brought by maternal parent.
2. Massachusetts father Steven Cook, prevented from seeing his daughter by a protection order based upon false allegations committed suicide after he was jailed for calling his four-year-old daughter on the wrong day.
3. Darrin White, a Canadian father who was stripped of the right to see his children and was about to be jailed, unable to pay a child support award tantamount to twice his take home pay, hung himself. His 14 year-old daughter Ashlee later wrote to her nation’s Prime Minister, saying, “this country’s justice system has robbed me of one of the most precious gifts in my life, my father.”
4. Reported on January 11, 2002 in the San Diego Union Tribute, a father’s rights, equity custody case ended in suicide on the steps of a San Diego courthouse, when a 43 years-old male, angrily waving court documents, walked up to court personnel, said “You did this to me”, and shot himself in the head.

While these cases are frightening and enigmatic, many of the underlying dynamics of these tragedies are no mystery to clinical sciences. Males are four times as often as females to kill themselves after loss of employment, or following divorce, and since 84% of all non-custodial parents are fathers1 it stands to reason that the same disproportion are victim to loss of a child and loss of life in divorce.

DAUBERT RULE: FACTUAL EVIDENCE AND EXPERT TESTIMONY IN CHILD CUSTODY DETERMINATION

In legal procedure, forensic evidence is knowledge based on empirical science. This means that the basis for the evidence has been tested by science, is generally accepted within the scientific community, and published in journals and at scientific conferences. Expert opinion and testimony, in child custody determinations is meant to assist in the lawful determination of a fact. One must examine this terminology more closely to understand its contradiction.

Family courts determine custody and visitation on the basis of the best interest of the child. In 1974, the American Bar Association approved a Uniform Marriage and Divorce Act, which has been adopted by Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington in support of this doctrine.

Recently, the U.S. Supreme Court, in Daubert v. Merrell4 held that before admitting expert testimony, the trial judge must decide whether the expert is testifying as to scientific knowledge. This itself is a bit of an oxymoron in that the trial judge is typically not a scientist. This ruling does require determination as to whether the methodology underlying the expert opinion is based on empirical science. Subsequently, in Kumho Tire Co. v. Carmichael5 the high court held that the Daubert “reliability” rule applies to all expert testimony, including child custody testimony.

STANDARDS OF SCIENCE

In federal court, an expert witness is defined as “a witness qualified as an expert by knowledge, skill, experience, training, or education”. Expert witnesses may offer opinions if their testimony is based on scientific facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case. Because judges and juries are not expected to have sufficient knowledge about all subject areas that come before the court they allow expert testimony.

In the vast number of custody cases, expert opinion and testimony in child custody are seldom based on any measure of empirical fact or scientific methodology. What is
mystifying is the fact that one will find these omissions and errors in any courtroom from New York to Los Angeles with striking precision. If the family courts are unable to ‘get it right’ they at least ‘get it wrong’ consistently and predictably across the country.

Case of Albert

Mr. Albert Hartman was ordered supervised visitation based on his MMPI and Rorschach test scores which indicated he suffered from Depression and Faking Responses on his testing. Based explicitly on these findings, the child custody evaluator concluded that the physical custody time Mr. Hartman already had should be withdrawn, and supervised visitation should be ordered with no overnights with paternal parent.

Fortunately, Mr. Hartman had independently completed standardized functional assessments with an independent expert as a part of a parenting program, which indicated that he displayed no such disorder. A careful review of the clinical records clearly showed that Mr. Hartman’s MMPI and Rorschach test scores were invalid due to the following (forensic) evidence: (1) Mr. Hartman was born and raised in a foreign culture and had been in the United States only two years (invalidating the “cultural validity” of his MMPI and Rorschach test results), and (2) Empirical evidence provided by his independent, standardized functional assessment demonstrated he did not suffer from any indicated mental disorder.

A forensic scientist could only find it mystifying that ‘parent competence’ is almost never used in child custody evaluations or guardian ad litem reports. Although these standardized functional assessments are available and well documented in the scientific literature, used broadly in the scientific community, and otherwise used across the nation, they seem to be a closely guarded family court secret. One clue to this curiosity is provided by the following case:

Case of Trevor

Distressed almost to the point of inconsolable, Dr. Trevor Morgan was barely able to control his feelings while he attempted to report his high-tension child custody case. A physician by occupation, he awoke in the early morning to a knock on his door informing him that he was under investigation for child molestation of his three years-old son. The story gets even better!

Dr. Morgan had been required by the court to pay a fee of twenty thousand dollars for a ‘complete’ child custody evaluation, which included the cost of evaluation of maternal parent as well. Based on the test results (MMPI and Rorschach), and maternal parent’s allegation that her son stated that his father had “touched his anus”, the evaluator initiated a CPS investigation, recommended supervised visitation, and forced separation from his son. He was also required to complete a “penile plethysmography (PPG)” test to prove he was not a child molester!

Here is where the story really gets interesting. The court appointed evaluator then indicated to paternal parent that while “false allegations of sexual abuse are common” in high-tension divorce, the evaluator could perhaps “set things right” in the matter. However, it would require an additional fifteen thousand dollars to cover her continuing court costs.

Paternal parent refused to pay, filed suit against the court-appointed evaluator, got the false sexual abuse charges dropped by the prosecutor’s office, and was granted “equity physical custody” (50/50 physical custody timeshare). This was all possible only because he had previously hired his own independent expert in child custody.

Few individuals realize that the tests used in these evaluations are tests of “mental illness”. The chances of finding one or more of the hundreds of mental disorders the test is designed to “profile” is very high. The majority of the population in the United States would probably fall into one or more of these mental disorder categories.

The reader must understand that these scenarios are not the exception. One clinician recently reported that eight out of ten of his divorce cases at any given time included false allegations of sexual abuse on the part of a maternal parent. If this clinical statistic were valid, eighty percent of the male population in the United States would be molesting their children! One divorce attorney closely wired to a district attorney’s office stated that he considered it his “fiduciary” in any divorce case to indirectly encourage maternal parents to contrive false sexual allegation charges because any such allegation assures maternal parent custody of the “victimized” child.

In a recent article, a reputable team of forensic experts concluded:

Our own thorough evaluation of tests that purport to pick the ‘best parent’, the ‘best interests of the child’, or the ‘best custody arrangement’ reveals that they are wholly inadequate. No studies examining their effectiveness have ever been published in a peer-reviewed journal. . . . Court tests that expert evaluators use to gauge the supposed best interests of a child should be abandoned. . . . We believe it is legally, morally and scientifically wrong to make custody evaluators de facto decision makers, which they often are because judges typically accept an evaluator’s recommendation. . . . Parents – not judges or mental health professionals — are the best experts on their own children. We are simply urging the same rigor that is applied to expert testimony in all other legal proceedings

POLITICS IN THE FAMILY COURT FAMILY

Underlying psychological dynamics, personality enmeshments, and simple lack of knowledge regarding the principals and procedures of family court itself have now drawn considerable focus from the scientific establishment. There is growing consensus that pathological dynamics of the family court itself may cause faulty custody determinations and related developmental trauma as these determinations impose forced separation from a parent. Despite the fact that no scientific basis exists for traditional court-ordered child custody evaluations, the voice of a parent is now whatever a judge rules is “law of the land”. Parens patriae (the country as parent), a legal concept used long ago by the English monarchy seems to have degenerated into family court politics.

PRESERVATION OF PARENTAL ATTACHMENT (DEVELOPMENTAL BEST INTEREST OF THE CHILD)

Attachment Theory

Based on current scientific literature, the “best interest of the child” is a meaningless concept unless understood from the perspective of childhood development. In other words, forensic evidence has significance in a child custody determination only in the context of the “developmental best interest of the child”. This is partly due to the vital nature of attachment, stages in childhood development, and parental bonding in childhood development.

Case of Nicole

Nicole Martinez was denied custody of her 8 years-old daughter due largely to the fact that paternal parent had unlimited financial resources and convinced the court that maternal parent had a mental disorder, based on the results of testing completed in a child custody evaluation.

In response to a forced separation from maternal parent, her daughter began cutting her wrists and developed social phobias. Paternal parent obtained a court order to then place his daughter on psychoactive medication which exacerbated the problem. Her daughter was forced hospitalization in a mental hospital to “regulate” medication management. Maternal parent was denied access to the medical or educational care of her daughter.

After six months of forced separation Ms. Martinez was denied a motion to begin physical custody of her daughter based on a clinical report stating that she was not yet “cured” of her mental disorder as indicated in her previous test results. She managed to obtain scheduled physical custody of her daughter only following an independent evaluation which evidenced two factors: (1) She was competent as a parent, as evidenced by independent assessment, and (2) Based on federal statutes, her continuing denial of her rights as a parent was unconstitutional.

A vast amount of empirical evidence contributed by highly qualified practitioners and scholars, confirms that infants in fact form vital attachments (emotional bonding) to paternal as well as maternal parents. Infants do not attach “sequentially” to maternal and paternal parents. The scientific logic based on this recent body of research is straight forward: any forced separation from a parent is developmentally traumatizing to an infant or child. In spite of this scientific reality, family courts unilaterally presume that in divorce cases, there must be a “custodial parent” and a “visitation parent” unless the parties in divorce are in complete agreement. If a couple could “agree” on anything (much less the welfare or best interest of their child) they would probably not be getting a divorce!

An entire body of forensic evidence specific to the topic of early cognition and early childhood attachment remains ignored, improperly understood, or falsely applied in child custody determinations, although nationally recognized scholars are included in this body of scientific research.

Neuroscience provides compelling evidence that attachment critically impacts brain development, with an even greater influence on development than heredity. It is forced (and in most cases un-necessary) separation of parental attachment which leads to poor outcomes in child development. The negative impact of these vast numbers of children harmed by these faulty determinations is staggering. The primary influence on children’s development is parenting. A parent denied physical custody of their child cannot parent their child. Alarmingly, in many instances, one finds denial of parenting rights in the form of ‘denial of physical custody’ used as a method of ‘punishment’ against a parent in these proceedings. The irony of this practice, common in (no fault) divorce is ludicrous!

LIGHTS AT THE END OF THE TUNNEL

A recent meta-analysis of child custody determinations which actually (retroactively) proved to have served the developmental best interest of the child in child custody determination revealed four critical factors: (1) Use of federal statutes designed to constitutionally protect parental rights, (2) Inclusion of current scientific findings (evidence) related to parent attachment, (3) Adequate critique of court-ordered evaluations by use of scientific (qualitative measurements) standards, and (4) Use of functional parent competence assessments.

Preservation of the parenting bond between child and parent in child custody litigation is what actually serves the developmental best interest of a child. A parent is a critical factor which cannot be replaced by court-appointed evaluators and caregivers. Significant outcome data supports this belief including higher academic performance, improved self-esteem, increased age-appropriate behavior, and improved social adjustment in children of divorce.

The erosion and denial of parents’ rights in family courts, i.e., the use of persons other than parents to make major decisions for their child, compelled forced separations, and thwarted parental care and upbringing of children results in severe harm to these children. Scientific research indicates that these false determinations itself results in irreversible developmental damage to children.

References:

1. Palmer, S. (2013), It’s the Parent’s Fault? Are Divorce Courts Causing Harm to America’ Children? https://www.fixfamilycourts.com/26/
2. Herman SP. Practice parameters for child custody evaluation. American Academy of Child and Adolescent Psychiatry. J Am Acad Child Adolesc Psychiatry. 1997; 36(10 suppl):57S-68S.
3. Cornell University Law School. Legal Information Institute. Uniform Matrimoial and Family Laws Locator, March, 2003. https://www.law.cornell.edu/ vol9.html.
4. U.S. Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993).
5. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).
6. Cassidy, J., & Shaver, P. R. (Eds.). (2008). Handbook of attachment: Theory, research, and clinical applications (2nd edition). New York: Guilford Press.
7. Gill, H. (2015). Mindful Child Custody (Thinking Outside the Child Custody Box). Amazon Press.
8. Gill, H. (2010). “Other as excluded self-object”. Seattle: 8th Annual Psychology for the Other Conference. Seattle University Department of Psychology.

Copyrights: All rights reserved, Herman Gill, Ph.D., 2016. No part of this article may be used or reproduced in any manner whatsoever without prior written permission.