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Key points
- Biases in custody decisions stem primarily from psychological blind spots and a poor knowledge base of interpersonal relationships.
- Judges are not adequately trained in fathoming how parents and children relate emotionally and in what is an adequate or a poor parent.
- Judges do not grasp how to evaluate the emotional conditioning of parents and how this makes or breaks healthy emotional development.
In my forty years as a child psychiatrist working with the court system and doing psychotherapy with children of divorcing parents, I find bias often operates in judges and attorneys. Many, if not most, of these skews are psychological in nature. In turn, these psychological distortions produce errors when judges make custody decisions.
My research into such emotional blind spots in custody decisions are discussed in my book, co-authored with Homer B. Martin, M.D., Living on Automatic: How Emotional Conditioning Shapes Our Lives and Relationships.
Goals of Childrearing and Legally Preferred Custody Arrangements
The psychological goal of childrearing is to help a child grow to adulthood and become an emotionally-balanced adult who has high-quality relationships, an ability to be goal-directed, and a capacity for work and leisure that enriches and contributes to high self-esteem and a sense of wellbeing.
Joint custody laws are currently in vogue in the United States as well as in other countries. Fifty-fifty time sharing of the child is commonly set up with the child spending roughly half of his or her time in each parent’s household. Such laws rest on the assumption that both parents are equally capable to raise a child. These laws also assume parents can be reasonable in cooperating with one another in rearing their children. In my experience, it is rarely the case that both parents are capable, or that divorcing parents can cooperate about childrearing.
“Messy” Cases
Court personnel do not like custody determinations. They consider them messy and troublesome. This could be because they are typically poorly skilled in assessing what goes on in each parent and what type of person each parent is. Attorneys and judges are poorly trained in determining reasonable and adequate parenting from poor parenting. They are trained in the law, not in the psychological training that comes with scrutinizing human relationships.
As a result, judges often “punt” by taking a stance of being “fair and equitable” to each parent. They decide for 50-50 possession of the child with legal joint custody. Such decisions do not consider the welfare of the child, only fairness to parents.
Poor Knowledge Base in Psychology of Parent-Child Interactions
Judges and attorneys are not trained to grasp the psychology of how children and parents relate emotionally to one another. It is this emotional level of relating that determines each child’s capacity to grow and develop into a well-functioning adult.
Courts have little to no grasp of the effects of parents’ different personalities on each child in the family. Judges often assume parents are generically equivalent in parenting capacity unless they hear of something egregious, like sexual or physical abuse of a child by a parent.
Courts place high, but erroneous value, on a child’s attachment to a parent. They fail to comprehend that a child’s attachment to a parent reveals nothing about the quality of the parent–child relationship. Children attach to both parents but in different ways.
Faulty Projections
Judges and attorneys often project onto litigating parents what they know about parenting from their own childhoods and from the parenting of their own children. They err on the side of projecting a rosy status quo and outcome and that all adults are equally capable in their child-rearing abilities.
Lack of Intimate Emotional Self-Knowledge
Court personnel have not likely delved into their own emotional conditioning from childhood. They do not recognize skews in their emotional understanding of how they carry out their relationships.
As a result, they do not recognize how early childhood experiences in forming relationships and early emotional conditioning create their biases, influence their view of the parenting ability of litigating parents, and allow errors in custody decisions.
Distinguishing between Parents Who Rear Children Well and Those Who Do Not
In our research, we found that most marriages and divorcing couples contain one parent of each emotionally conditioned role—one omnipotent and one impotent. People are emotionally programmed differently in childhood. This conditioning creates different personalities in adulthood. Court personnel are unable to distinguish caregiving, omnipotent parents from care-consuming, impotent parents.
I found that a caregiving, omnipotent parent makes the better parent for rearing children. They are better able to meet their children’s physical and emotional needs. Omnipotent role parents are accustomed to being in a giving role, whether with their children or when in the marriage with their spouses.
On the other hand, care-consuming, impotent parents expect children, and former spouses, to meet their emotional needs. This is a role reversal when children are expected to meet an adult’s emotional needs. Impotent parents lack the ability to give emotional care to their children. Children sometimes fall into this caregiving role expectation and emotionally attempt to care for needy parents, but it damages children psychologically by overburdening them emotionally.
Wrongful custody decisions place a child’s wellbeing in the hands of impotent role parents, whether in sole or joint custody. The outcome is often disastrous and can result in emotional dysfunctions, illnesses, substance abuse, and other developmental problems for the child.
It behooves attorneys and judges, who face momentous decisions for the best welfare of a growing child, to ascertain their own emotional makeup, the emotional roles of interacting parents, and the ways parents and children relate in their psychological, emotionally-conditioned roles.
