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Keeping Kids Out Of The Middle
 Keeping families
                        out of court
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Family matters don't belong in court
Know your biases
About "the best interests of the
                            child" standard
About the "voice of the
                            child" and in camera interviews
Families are dynamic
Should I order a psychological
Should I order parties or the child
                            into therapy?
What is Parenting Coordination?
Do child therapists belong in court?

Family matters don't belong in court.
Our courts were built to answer the question, "who done it?" The legal process emphasizes guilt versus innocence. Criminals are indicted, prosecuted, defended, and sometimes convicted. Sentences are doled out. Freedoms are lost. This is the place and the process that most of the world now uses to resolve family law matters. This is not right.

To approach a family law matter from a  "who done it?" perspective is to fuel parties' acrimony to the detriment of all, no one more so than the child. Matters such as divorce, "custody," and relocation raise questions about the child's needs and how best they will be fulfilled. These are questions about strengths and resources and resilience, not blame and guilt.

Tragically, bringing family law matters into our conventional courtrooms often exacerbates tensions and polarizes parents, driving a wedge into the schism between them. Conscientious counsel are routinely forced to strike a balance between zealous advocacy and the best interests standard.

For these and related reasons, many and varied alternative dispute resolution (ADR) paths have emerged around the world, encouraging adults who are terminating their intimate relationship to maintain and even to enhance their co-parenting relationship. Family Law Consulting PLLC and Dr. Garber frequently recommend these paths within jurisdictional and case-specific limits. Read more here Read more here

“… when used appropriately, ADR [alternate dispute resolution] ,
particularly mediation, is an effective method of
reducing the delay, expense and trauma
to children often experienced during divorce." 

Shepard (2007) quoting the
Matrimonial Commission of New York
Read more here

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What can the courts do?

  • Keep current with developments in ADR. Become a member of an ADR association, read the literature and bring these services to your jurisdiction.

For example:
  • The Academy of Professional Family Mediators Read more here
  • AFCC "Model Standards of Practice for Family and Divorce Mediation" Read more here
  • International Academy of Collaborative Professionals Read more here
  • American Bar Association Collaborative Law Committee Read more here
  • Exercise every prerogative within your authority to divert conflicted caregivers from litigation. Order Early Neutral Evaluation (ENE), mediation, med-arb or arb-med as these might be available to you. Engage trained third party neutrals such as Parenting Coordinators. Bottomn line: Keep conflicted families out of court!
Read more here:
  • Barsky, A. (2013), “Med-Arb”: Behind the Closed Doors of a Hybrid Process. Family Court Review, 51: 637–650.
  • Santeramo, J. L. (2004). Early neutral evaluation in divorce cases.Family Court Review, 42: 321–341.
  • Pearson, Y., Bankovics, G., Baumann, M., Darcy, N., DeVries, S., Goetz, J. and Kowalsky, G. (2006). Early neutral evaluations: Applications to custody and parenting time cases program development and implementation in Hennepin County, Minnesota. Family Court Review, 44: 672–682.
  • Lobby for child-centered ADR reforms in your jurisdiction.

Read more here:

  • Boyarin, Y. (2012). Court-connected ADR -A time of crisis, a time of change. Family Court Review, 50: 377–404.
  • Salem, P. (2009). The emergence of triage in family court services: The beginning of the end for mandatory mediation? Family Court Review, 47: 371–388.
  • Keep your eye on the child's needs. Ask yourself (and counsel, as the opportunity arises) how every particular raised in favor of one parent and against the other bears on understanding and serving the child's needs. Don't assume, for example, that diagnosis of a psychiatric disorder means "bad parent."
  • Don't order individual psychological testing for parties. These evaluations are time consuming and expensive. Within extremes, there is no necessary link between diagnosis and parenting. And the extremes? Those will be evident in the court room, from history and references anyway. Read more here Read more here
  • Consider the child's voice. Whether this means in camera interviews, ordering a "voice of the child" evaluation, or tasking a child-centered professional as a go-between will depend on your training and preferences and jurisdictional mandates. Read more  FRead more here
  • Avoid determining child custody and parenting plans exclusively from the bench. Order a Guardian ad litem evaluation whenever possible. Better still, order a comprehensive child-centered family evaluation (a.k.a., "custody evaluation"). Too expensive? This is a myth. After you total lawyers' expenses and time lost at work, a GAL or a "custody" evaluation will prove to be no greater cost for a far more child-centered outcome.

Read more here:

  • Silver, R. B., & Silver, D. C. (2008). Child custody evaluations: Help or hindrance? Journal of Forensic Psychology Practice, 8(3), 300-308.
  • When you order a GAL or a child-centered evaluation, identify the questions that you want answered specifically and unambiguously:
  1. Broad strokes such as, "How should the responsibility for the child's care be divided between the two parents?" invite expansive investigations.
  2. Win-lose questions such as, "Which parent is better able to respond to Billy's medical needs?" may be important, but tend to polarize and antagonize. Better to ask that each parent's ability to meet Billy's medical needs be identified.
  3. Focus  on determining the adults' respective strengths and weaknesses, the child's unique needs, and the resulting fit between parent and child and between co-parents.
  4. Be clear: Do you want recommendations or well-informed descriptions?
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Know your biases.

"It is unnecessary for me to assess the argument advanced by others
that the judiciary is biased in its choices and prejudiced in its decisions
because of the narrow social, educational and professional background
which most judges share. It is enough to acknowledge that
no one can be entirely free of the perspectives
 and assumptions that derive from his background.”

Lord McCusky as quoted by
Lord Neuberger, F.A. Mann Lecture (2015)
read more here

We are all human beings, flawed and limited each in our own way. We are all vulnerable to "confirmational bias:" the human predisposition to see and hear what we expect to see and hear, regardless of what genuinely occurs.

Bias can be both the seeds and the fruit of compassion fatigue, vicarious trauma, and burn-out, Read more here Read more here

Biases can distort our view of a child's best interests. Unwarranted, invalid, "gut beliefs" and perspectives built on nothing but personal experience risk doing harm. Our first responsibility is to recognize our biases so that we can question the decisions that are built upon them. Family Law Consulting, PLLC, and Dr. Garber are acutely aware of these biases as they occur in GAL investigations, child-centered family evaluations, and judicial rulings.

All other things being equal, do you believe:

  • Children belong with their mothers instead of their fathers?
  • The future division of childcare between the parents should be approximately the same as the pre-separation division of care?
  • Same-sex couples are less capable of raising a healthy child than heterosexual couples? (This judge believed this Read more here).
  • Inter-generational co-parents (e.g., mother and grandmother) are less capable of raising a healthy child than heterosexual couples?
  • "Alienation," "parental alienation" and "parental alienation syndrome" are just excuses for bad parenting?
  • Domestic violence between adults has no necessary bearing on parenting and child development?
  • An intelligent, socially skilled child should be allowed to choose between his or her parents?
  • Psychological tests of the parents will usually be helpful in determining custody?
  • A child of any particular age less than 18 should be allowed to choose between his or her parents?

Each of these statements is arguably false. All of these statements have arisen in cases reviewed by Family Law Consulting PLLC. The court's endorsement of any of these fallacies risks doing harm to the child.

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About the "Best Interests" standard

The "best interests of the child" (BIC) standard is the imperfect evolution of our society's emerging recognition of children as persons with inherent rights, deserving of respect and the opportunity to be heard in matters concerning their well-being. The BIC stands like the latest floor built upon a foundation that began in the ancient ethic of parens patriae and, more recently, in the British Common Law with the idea that children were chattel. In the last century, the law has shifted through sequential custody rubrics, each attempting to clarify parents' responsibilities post-separation and -divorce. These include the approximation rule, the tender years doctrine, and the concept of least detrimental alternative.

The BIC is empowered throughout much of the world by the United Nations Convention on the Rights of The Child Read more here

United Nations
Convention on the Rights of the Child
Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

In part because the United states has not (yet) ratified the UN Convention, our courts defer to the Uniform Marriage and Divorce Act (UMDA) or it's state-specific interpretation.

§ 402.The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:

(1) the wishes of the child's parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interest;
(4) the child's adjustment to his home, school, and community; and
(5) the mental and physical health of all individuals involved.

The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.

Read more here Read more here

Alas, neither the UN Convention nor the UMDA (nor any of it's reincarnations, elaborations, or clarifications) advise how these several factors are to be assessed or weighed. Family Law Consulting, PLLC, and Dr. Ben Garber bring decades of experience, education and training to consideration of these issues and the court's responsibility to genuinely serve each child's unique needs. In particular, expert consultation can help to cast GAL and/or evaluator recommendations in the light of BIC criteria.

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The voice of the child?

Both the UN Convention of the Rights of the Child and the United States' UMDA criteria recognize the child's right to be heard in matters pertaining to his or her future well-being. Overlapping with this mandate are those jurisdictions that ambiguously invite the input of the "mature minor" Read more here

Jurisdictions and judicial officers interpret these responsibilities differently. Where the court has latitude, it can be very difficult to determine if and how the child's voice might be heard. Family Law Consulting, PLLC, and Dr. Ben Garber are prepared to bring the contemporary literature to bear so as to understand and critique these decisions and the value placed on the child's statements once solicited.

  • Should you interview the child? Do you have the requisite skills? Time? Resources?
  • If you interview the child, do you do so in chambers? In court? In robes? Street clothes?
  • Will there be a record of the interview? If so, who will have access and what will you tell the child? If not, how will you handle due process concerns if your decisions incorporate the child's input?
  • If you interview the child, who else will be present? Counsel? the GAL? The parents?
  • What do you think about the Canadian justice who abruptly visited the child at school Read more here ?

Here's what we know in very brief form:

  • Children want to feel that their voices have been heard, even if the eventual court's ruling is inconsistent with their wishes.
  • Children who feel that their voices have been heard are more likely to comply with the court's rulings.
  • The child's expressed opinions are easily and often contaminated by a wide variety of systemic confounds. Family Law Consulting, PLLC, and Dr. Garber will  help the court to identify and sort through these various pressures in search of the child's genuine wishes and needs.
Read more here Read
                                more here
    • Birnbaum & Bala (2009), “The Child’s Perspective on Legal Representation: Young Adults Report on Their Experiences with Child Lawyers,”  Canadian Journal of Family Law, 25(1), 11- 71.
    • Birnbaum & Bala (2010) , “Judicial Interviews With Children In Custody And Access Cases: Comparing Experiences In Ontario And Ohio,” International Journal of Law, Policy and the Family.
    • Fernando, M. (2014), Family Law Proceedings and the Child's Right to be Heard in Australia, the United Kingdom, New Zealand, and Canada. Family Court Review, 52: 46–59.
    •  Miller, S. (2014), Judicial Discretion and the Voice of the Child in Resolving Custody Disputes: Comments on the Think Tank Report. Family Court Review, 52: 198–199.
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Families are dynamic.

Criminal matters are like dominoes. Done right, the pieces fall in a row. Cause and effect are clear. Guilt is determined and consequences occur.

Families are like something out of an Escher print. Because families are dynamic systems, there is seldom a clear cause for any particular effect. Emotion and words and behavior intermix to create a very non-linear interaction. This makes the court's job of determining right and wrong often near impossible.
read more here

Families grow and change over time.This means that the family that we see today will be different tomorrow and more different still the day after. Family law professionals must learn how to anticipate growth and development and plan accordingly. "Developmental Psychology for Family Law Professionals" is the one and only guide to better understanding and anticipating development over time.

Develpmental psychology

Add to this the fact that every member of each family is constantly growing and learning and adapting, not just the children. The behaviors that first prompted litigation, child protective service involvement, or a police report have very likely changed over the time that it takes to get parties to be heard in your court.

Family law is a moving target.

Together, these facts mean that the legal process must be both comprehensive and expeditious. Tragically, the realities of schedules and budgets mean that this is seldom the case.

Family Law Consulting, PLLC, and Dr. Ben Garber will recommend steps that can streamline proposed litigation by focusing on the child and by moving litigious parents toward more collaborative and child-centered resolution paths. After the fact, Family Law Consulting, PLLC, will be there to advise if and how family dynamics and development have been properly considered by an investigating GAL or evaluator. But most constructively, Family Law Consulting, PLLC, works with the courts to assure that child-centered solutions can grow with a child over time, minimizing high conflict parents' need to re-litigate the parenting plan every time the child takes another developmental step.

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Should I order a psychological (psychometric) evaluation of the adults?
Probably not.

Psychological ("psychometric") evaluation ("testing" or "assessment") refers to the standardized administration, scoring and interpretation of instruments established to quantify or qualify specific areas of human growth and functioning. Many (but not all) of these instruments are well-respected, with reliability and validity coefficients that fulfill Daubert criteria in their intended uses. These uses are largely diagnostic and for purposes of individual treatment planning, academic, and/or occupational placement.

Just because an instrument is useful in one context does not mean that it can or should be used in another. Hammers, for example, are excellent nail-drivers but are likely very inadequate writing implements. In a like manner, many excellent psychological test instruments are completely inadequate in the context of family law.

Family law is about relationships, and relationships are about "fit." How each parent's unique strengths and weaknesses "fit" with each child's needs. How Parent A and Parent B "fit" together as co-parents, that is, their mutual ability to communicate, cooperate, and work toward consistency of parenting practices. Testing may tell you about the individuals, but will say little or nothing about "fit."

Read more here

Go ahead and order testing: Weeks or months and thousands of dollars later, Parent A will have three diagnoses. Parent B will have four diagnoses, one of them a "character disorder." Now what? The child goes to the parent with the fewest labels? No. The time and money and effort are far better spent on standardized, direct observations of the quality of the relationships by a skilled child-centered professional. This is what custody evaluation is all about.
Read more here

Read about DSM 5 (and ICD 10) diagnoses in family law matters Read more here
  • Martindale, D. A. (2016). Diagnoses in Child Custody Evaluation Reports. The Matrimonial Strategist, 34(2), 1ff
Family Law Consulting, PLLC, and Dr. Ben Garber can assist the court to determine if and when and what kinds of psychological evaluation might be relevant and valid, if and how past psychological testing should be admitted and what weight, if any, they should be given.

Read more here Read more here
  • Sanders, J.D. and Katz, S. (2013) The Overuse and Misuse of Psychological Testing:
    Why Less is More. American Journal of Family Law, Vol. 26, No 4.
    Read more
  • Erickson, S. K., Lilienfeld, S. O., & Vitacco, M. J. (2007). A critical examination of the suitability and limitations of psychological tests in family court. Family Court Review, 45(2), 157-174.
  • Chiu, E.Y. (2014). Psychological testing in child custody evaluations with ethnically diverse families: Ethical concerns and practice recommendations. Journal of Child Custody: Research, Issues, and Practices, Vol 11(2), 107-127  
  • Goldstein, Mark L. (Ed). (2016). Projective personality assessment in child custody evaluations. Handbook of child custody. , (pp. 85-92). Cham, Switzerland: Springer International Publishing,
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Should I order psychotherapy?

Might parties benefit from psychotherapy?

Might psychotherapy for the adults have a trickle-down benefit for the children?

Yes and yes.

But should the court -can the court?- order that parties enroll in individual psychotherapy? This happens quite often in some jurisdictions despite numerous hurdles. Consider:
  • If the service is court-ordered, who is the legal client or patient? Is it the adult or the court?
  • If the service is court-ordered and particularly if that means that the court -not the parent- is the legal client or patient, who has access to the records of treatment?
  • If the service is court-ordered AND if the court has access to the records of treatment, how open and honest will the adult be? How useful will the service be?
  • What are the specific goals of the psychotherapy? What responsibility will the psychotherapist have to report back to the court about progress toward these goals?
Family Law Consulting, PLLC, and Dr. Garber bring expertise in guild-specific ethics and the law relevant to parsing these questions in advance so as to make the court's order unambiguous, the therapist's goals clear, and the parent's opportunity to benefit from the service optimal. More commonly, however, Dr. Garber is called upon to provide expert consultation after the fact with regard to a treating therapist's choice to disclose or not to disclose, the relevant conditions and the admissibility of those outcomes.

back to top What is Parenting Coordination?
Parenting Coordination (PC) is a child-centered alternative dispute resolution role that has emerged in the last decade. The PC is typically court-appointed and/or enabled by parties' mutual stipulation to work with the parents through a three-step process to settle child-centered matters within the parameters of the parenting plan. These steps are (1) education, (2) mediation and (3) arbitration. Depending on relevant legislation and practice, the PC "has teeth;" that is, he or she is empowered to arbitrate when all else fails, such that parties are bound by the resulting decision unless and until the court rules otherwise.

Ordering parties to work with a skilled PC can expedite decisions and minimize recidivist litigation very much to the benefit of all involved.

Dr. Garber is a trained and experienced Parenting Coordinator. He was co-founder and co-president of the Parenting Coordinators' Association of New Hampshire.

Working as an expert consultant, Dr. Garber has advised counsel about proper PC practice, critiqued PC decisions, and advised courts how and when a PC can help to defuse adult tensions and minimize recidivist litigation in the child's best interests.

Practice pointer:

  • When ordering parties to work with a PC, the order should require that the professional meet the training criteria of and practice within the parameters established by the Association of Family and Conciliation Courts (AFCC) Read more here
  • The American Psychological Association also has established guidelines Read more here
  • Read more about PC and ADR here Read more here
  • Read more here:
  • Demby, S. (2016). Parenting coordination: Applying clinical thinking to the management and resolution of post‐divorce conflict. Journal of Clinical Psychology.
  • Montiel, J.T. (2015). Out on a limb: Appointing a parenting coordinator with decision‐making authority in the absence of a statute or rule. Family Court Review, Vol 53(4), Oct 2015, 578-588.
  • Coates, C.A. (2015). The parenting coordinator as peacemaker and peace-builder. Family Court Review, Vol 53(3), 398-406.
  • Kirkland, K. (2010). Positive coping among experienced parenting coordinators: A recipe for success.Journal of Child Custody: Research, Issues, and Practices, Vol 7(1), 61-77.
  • Montiel, J. T. (2015), Out on a Limb: Appointing a Parenting Coordinator with Decision-Making Authority in the Absence of a Statute or Rule. Family Court Review, 53: 578–588.

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Does the child's therapist belong in court?

When parents conflict (regardless of the legal status of the adult relationship), children often experience anxiety, sadness, fear and anger. Their foundation is being shaken. A skilled child therapist can often provide a new foundation while the adult matter progresses, giving the child a "port in the storm."

Because this supportive psychotherapy can be essential for a child's well-being, the child therapist often has access to a great deal of information relevant to the court process. Records of the child's therapy may include reports of one parent's substance abuse and another parent's neglect and perhaps even the child's (momentary) preference to live with one and not the other. For this reason, it can be as tempting to subpoena or depose the child therapist as it is destructive.

Therapy is only a "port" so long as it remains isolated from the storm. The child must be able to trust that the therapist is there to support him or her and their interactions are at least partially private.

Some jurisdictions have legislated means of protecting the child's psychotherapy Read more here

"We conclude that parents do not have the exclusive right to assert or waive the privilege on their child’s behalf."

In the matter of Kathleen Berg and Eugene Berg
New Hampshire Supreme Court (2005)

Practice pointer: The court that orders parents to enroll their minor child in psychotherapy should anticipate the details so as to minimize the risk that the therapy will become another bone of contention. Consider:
  • If choosing the therapist will become a conflict, can one parent be allowed to choose?
  • Can the enabling order direct the parents to respect the child-therapist alliance?
  • Can the enabling order direct the parents to comply with the child therapist's requests in support of the child's therapy?
  • Can the enabling order facilitate a "treatment team" by permitting the child therapist to exchange information with the adults' individual therapists, the marital therapist, the co-parenting therapist, the" reunification" counselor and/or the Parenting Coordinator?
  • How will the child therapy be paid for? How will uninsured expenses be covered?
  • Can the enabling order insulate the child therapy from the litigation?

Consider also:

  • Children naturally blame themselves for family turmoil. Although assuring that a child has "a port in the storm" may be very positive, take care that the process does not confirm the child's idea that he or she is the problem. For example: When insurance companies are billed for child therapy, the child must be identified as the patient and given a diagnosis. This is true even when the child is suffering due to the parents' conflict. The court and parties must be aware of how this well-intended step can backfire, confirming the child's worst fears.
Read the AFCC's "Guide For Court-Involved Therapy" Read more here
Read, "But the judge ordered me to do it!" Read more here

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