Gregg Bloche, M.D.

M. Gregg Bloche M.D., J.D.

The Hippocratic Myth

Child Custody I: Let Doctors Decide?

Child Custody: When Parents Go to War

Posted Mar 20, 2011

Welcome to my blog! I'll take on messy questions at the crossroads between psychology, ethics, and the law. In some posts, I'll look at the roles that mental health practitioners-psychologists, psychiatrists, and others-play in our law and public affairs. In other posts, I'll consider the implications of research on the mind and brain for our understandings of our duties to each other. I'm a psychiatrist by training, but I teach at a law school (Georgetown), and I write about health policy, law, and ethics.

My first 2 posts will look at the role of mental health professionals when parents go to war over custody of their children. Child Custody I: Let Doctors Decide? considers the power these professionals exercise, power that far exceeds their expertise. Child Custody II: Fred and Ally Go to War offers an example, then urges some limits. Both posts are adapted from my new book: The Hippocratic Myth (Palgrave-Macmillan, March 2011), about medicine's public roles.

Child Custody I: Let Doctors Decide?

Millions of Americans are affected in life-changing fashion by the opinions mental health professionals render in child custody cases. Each year, more than a million children suffer the breakup of their families through divorce. An uncounted number of additional children, surely in the hundreds of thousands, endure the separation of their unmarried parents.

It's been estimated that nearly half of all babies born to married parents will lose their families to divorce before they turn eighteen. For children born outside of marriage, the prospect of parental breakup is much higher. Children lose parents-or find their relationships with one or both parents totally transformed. Fathers and mothers are suddenly threatened with the loss of their children, and their roles in their children's lives often shrink dramatically.

During the early years of the American republic, resolution of such cases was predictable. Divorce was rare. When it happened, fathers almost always won sole custody. They had property rights to their children; mothers didn't. Over the course of the nineteenth century, this approach was slowly supplanted by a preference for mothers. The so-called "tender years" doctrine held that women were, by nature or God's gift, more affectionate and otherwise better-suited to care for children, especially those younger than age thirteen. "Tender years" prevailed through the mid-twentieth century, backed by medical theories that cast women as too weak for the rigors of the workplace but more nurturing than their menfolk at home.

Although the sex bias embedded in these legal doctrines was blatant, this bias was, at least, open and honest. First men, then women, were favored as parents. And these dubious doctrines yielded easily foreseen results. Judges could apply them-and did-without exercising broad discretion or sweating the case-by-case details. Doctors were rarely involved. Their role was limited to the diagnosis and documentation of serious illness-illness disabling enough to upset the presumptions of paternal or maternal custody that these doctrines imposed.

Such custody battles as did occur were fought on moralistic grounds. Men challenged the "fitness" of their former wives, alleging sexual license or other forms of turpitude. Women questioned men's willingness to provide for their children and to teach them about right and wrong.

The 1960s and 1970s wrought radical change. Divorce rates soared. Women rejected the limits on their life chances outside the home that the "tender years" doctrine implied. Men insisted on a larger role in raising their children. Courts backed away from overt sex bias in the law of family break-up, preferring legal standards that promised gender equity. The vacuous "best interest of the child" standard replaced "tender years," freeing family law from the stigma of overt bias but forcing judges to award custody without clear rules to guide them. By the mid-1980s, nearly every state had abandoned "tender years." Custody contests became a free-fire realm-a realm without rules, beset by raw passions.

Into this lawless void, mental health professionals entered eagerly. The pioneers were two renowned Freudians, psychiatrist Albert Solnit and Sigmund Freud's daughter and disciple, Anna. Working with a legal scholar, Joseph Goldstein, who himself trained as a psychoanalyst (and treated patients in his faculty office at Yale Law School), the two formulated the theory that every young child has a "psychological parent"-a primary caregiver on whom the child counts for affection, security, and satisfaction of life's basic needs.

Tearing a child away from her "psychological parent," Goldstein once told a court (in a custody case), would have lifelong, shattering impact, leaving her "damaged and bruised," with "a sense of rejection and distrust about the external world." It would interrupt the process of "internaliz[ing] the parent," critical to a child's ability to venture confidently into the outside world. In custody contests, therefore, the court's task was to identify the "psychological parent," award him or her full custody, and get other, would-be caregivers out of the way. To this end, psychiatrists and psychologists offered themselves as experts to divorce lawyers and family courts. This offer was eagerly embraced.

But there wasn't any science behind the "psychological parent" proposition. There were no large-scale field studies of parent-child relationships; nor was there anything resembling rigorous measurement of parenting outcomes. What "proved" the proposition to its proponents was an act of imagination, captured by Goldstein in his elegy to Anna Freud upon her passing: "Miss Freud taught us to put childish things before, not behind, us. She taught us to place ourselves in a child's skin, to try to think a child's thoughts and feel a child's feelings about being ‘removed from a known environment to an unknown one,' about his ‘residence being divided evenly between two warring parents' or about having to visit an absent parent on ‘prescribed days and hours.'"

It's pedestrian to point out that Anna Freud had no way of knowing whether she was feeling a child's feelings-and that this act of imagination disregarded the down-the-line benefits of keeping both parents in a child's life. It's pedestrian-but essential to an understanding of the power mental health professionals began to assert as arbiters of family structure.

That Goldstein, Freud, and Solnit knew they were asserting power is clear. In a 1966 letter to Solnit and Yale Law's dean about a possible faculty appointment, Freud expressed excitement about "[t]he plan of drafting a model code of procedure for the disposition of children." Four years earlier, at her first meeting with Goldstein, she'd let him in on what so excited her about their possible collaboration: "Because my father as a young man wished, for a time, to study law. He had always hoped to establish a rapprochement between psychoanalysis and law." And in his 1982 elegy upon her passing, Goldstein spoke with gratitude about her impact on family law: "As lawyers, legislators, law teachers, and judges, we continue to draw on what she taught."

What she taught enabled custody courts to stay, on the surface, sex neutral while putting into effect a strong preference for mothers. True, fathers were and are the main caregivers in some families, but women do most of the hands-on parenting of infants and young children. Later research would show a tendency for men's time with their children to rise steadily, starting in the preschool years, toward equivalence with women's parenting time as children entered their teens. Other research-not done by psychoanalysts-would show that highly-engaged fathers enhance their children's academic performance, self-confidence, and social adjustment.

The Goldstein, Freud, and Solnit psychological parent formulation cut off these possibilities with a preemptive strike. It was winner-take-all, and the winner was usually Mom, based on her larger early-childhood role. "Tender years," in other words, enjoyed life after death. It was smuggled into custody cases by mental health professionals long after the courts had formally abandoned it.

For mothers in the midst of custody warfare, this was a happy circumstance-a strategic advantage camouflaged by the law's purported neutrality and psychiatry's (and psychology's) patina of professional expertise. But for women intent on breaking from sex stereotypes and pursuing their career dreams, the "psychological parent" thesis was a rebuke. It suggested that they should stay home with their children so as not to leave them "damaged and bruised," with feelings of abandonment and distrust toward the world. And it freed most men from fatherly obligations, on the ground that they were of marginal value to their children and, after divorce, should get out of the way.

Custody evaluators who invoked the psychological parent proposition practiced cultural politics-conservative politics that pushed back against women's efforts to combine motherhood with career and men's yearning to make fatherhood more central to their lives. More than that, these mental health professionals made social policy. Especially in the inner city and other places where out-of-wedlock births were pandemic, they raised barriers to fathers' remaining in the picture. Once the question of custody and child support reached court, a father's initial absence became a legal barrier to his reengagement. His task was to pay; his parenting role was peripheral.

Research would later show the obvious: Absent fathers are more likely to become "deadbeat dads" than are fathers who participate in their children's lives. Pushing fathers to the periphery not only shortchanged kids developmentally; it left them and their mothers materially worse off. This, the forensic evaluators who followed Goldstein, Freud, and Solnit utterly ignored.

By the mid-1980s, participation of psychiatrists and psychologists in custody disputes had become routine. Adherents to the psychological parent proposition were the pioneers, but backers of other theories enthusiastically offered their services. Divorce lawyers shopped for favorable experts, clients fearful of losing their children paid willingly, and courts looking for impartial guidance appointed their own mental health professionals.

In other fields of law, judges aggressively policed the admission of experts' conclusions, reading rules of evidence to require that they have some scientific basis. But custody contests were a mostly science-free zone. Courts clueless about how to answer the vague best-interest-of-the-child question listened to custody evaluators' conclusions about who would make the best parent, then typically rubber-stamped their recommended results.

That there isn't a "science" of custody evaluation has been long recognized by researchers but ignored by the courts. About all that can be said for sure about outcomes for children is that exposure to parental conflict predicts poorer emotional health and school performance. A mother's or father's serious mental illness also puts a child at psychological risk, absent the stabilizing influence of a co-parent. So psychiatrists can contribute to custody decisions in evidence-based fashion by assessing parents for mental illness. Their experience as observers of people might even empower them to spot behavior that sparks conflict. But how to balance the risks of a parent's mental illness against the positives he or she offers-and how to go from observations of button-pushing behavior to recommendations about who should raise a child-are questions of value, beyond the reach of clinical expertise.

Answers to these and other questions of value animate clinicians' custody recommendations. Examples include the choice between a mother's tenderness and a father's resolve, between one parent's emphasis on academics and the other's focus on sports or social life, and between parents' moral and religious commitments. The cultural issues that divide us when we vote, pray, and forge social ties are ammunition in custody warfare-and grist for custody evaluators' judgments.

These judgments are typically decisive. Aware that judges expect clinical evaluations in contested cases, lawyers for both parents usually agree upon a mental health professional (unless the court selects one). And knowing that judges generally go with the evaluator's recommendations, lawyers typically tell "losing" clients to accept this result rather than chancing trial. After the evaluation comes in, the parties customarily settle.

For all but the wealthiest of warring parents, economics compels this. Going to trial is commonly a six-figure proposition-tens of thousands of dollars for legal fees and a second evaluator (often less credible to the court than the one agreed to by both parties). Weighed against the improbability of winning, this impoverishing expenditure can seem an act of madness.

Custody evaluators are thus virtually immunized from close scrutiny of their cultural and moral premises. Since custody trials are unusual, cross-examination of evaluators in court is rare. When parties settle before trial, evaluators' cultural and moral preferences shape parenting plans sight unseen.

In many jurisdictions, moreover, doctors who perform these evaluations are immune from malpractice suits. And evaluations typically are kept secret after custody is resolved. Judges "seal" court records. Parties that settle commit to keeping these reports confidential. They fear humiliating revelations and future cycles of family recrimination. It's thus nearly impossible to hold evaluators accountable, whether through suits for malpractice, professional disciplinary action, or compilation of Consumer Reports-style performance reviews.

This freedom from scrutiny also empowers custody evaluators to usurp the courts' role as finders of fact. Evaluators interview parents and children, therapists and lovers, employers and teachers, and just about anyone else they choose. The law's usual safeguards don't apply.
There is no medical confidentiality, for example, when the custody evaluator calls. Nor do the rules of evidence or due process apply. Evaluators make judgments about who did what to whom and whose fault it was under cover of supposed clinical expertise. There aren't rules against hearsay, nor rights to cross-examine disparaging claims, nor chances to put half-truths into context. Instead, courts treat evaluators' judgments as "evidence"-evidence worthy of extra weight because of their expertise.

Custody evaluators thus exercise extraordinary power, unrestrained by scrutiny of personal biases or cultural and moral preferences-and unsupported by scientific or clinical expertise. In our legal system, there's nothing quite like it.

Coming Soon: Child Custody II: Fred and Ally Go to War

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