Key pitfalls to sidestep when managing mental-health professionals during high-conflict divorce cases.
By Dr. Michael Oberschneider, Custody Evaluator and Parenting Coordinator
In the ideal divorce situation, family law attorneys are able to mitigate or circumvent problems for the involved parties without the need for adversarial negotiations and/or aggressive litigation. But when it comes to high-conflict divorces, things like mediation, collaboration, and cooperative negotiations are often not an option, especially when the matter of custody is at hand.
Mental-health professionals can be helpful to family law attorneys during high-conflict divorces, but unfortunately, it is not uncommon for some attorneys to attempt to blur a clinician’s boundaries in order to buttress their negotiations and litigation. Certainly, it is one thing to use mental-health professionals cleverly during a high conflict case, but it is an entirely different thing to do so in unethical ways or at any cost. When a mental-health professional’s work is misrepresented or distorted – intentionally or unintentionally – by family law attorneys, the possibility for emotional and relational harm increases, as does the potential for a poor final ruling or outcome for a family.
Successfully navigating one’s way through a high-conflict divorce case is a difficult undertaking, especially when mental health concerns for either the involved adults and/or minor children may be present. While each family presents its own unique dynamic and set of problems, and while there is not a one-size-fits-all way to manage mental health issues and professionals during high-conflict divorce cases, it is important for family law attorneys to be mindful of the following pitfalls.
Avoid these 7 Pitfalls When Managing Mental-Health Professionals During High-Conflict Divorce Cases.
1. Don’t use therapy as a litigation tactic.
Some family law attorneys will encourage their client to either get themselves or their children “treatment” or “therapy” with the intention of compelling that therapist to Court as a legal tactic all along. These attorneys might even suggest to their client that they do not need to include or inform their spouse of the treatment of the children, only for that parent to later learn of his or her child’s treatment at a later time. This sort of scenario often backfires and the therapy process is compromised or terminated prematurely when the neutrality and ethics of the therapist are challenged by the uninvolved parent. If the therapy does continue, the child’s therapy is usually still damaged by the surrounding parental distrust and disagreement, and this is unfortunate should the child or children truly need to be in therapy.
In my opinion, it is also inappropriate for family law attorneys to attempt to influence the therapist in any way or to communicate exclusively with their client’s therapist or their child’s therapist. While I suppose there are times and circumstances when attorneys could and maybe should communicate with involved mental-health professionals, I think that attorneys in those instances should strive to keep all information and communication even when working with mental-health professionals. For instance, the involved attorneys could schedule phone or in-person meetings with a therapist to discuss things (once client and/or parental consent is granted) to avoid the appearance of improper communication or the aligning of one attorney with the clinician.
When these sorts of moments are not managed even-handedly by the attorneys, a perception of bias could form for one side or the other. I have too often seen a good therapist’s credibility challenged by an attorney in court via impeaching their testimony for not behaving equitably in treatment or with attorneys.
Some family law attorneys will go so far as to ask a client’s therapist or a child’s therapist to opine on the divorcing spouse’s mental-health functioning without their having formally assessed or treated the divorcing spouse. Professional guidelines preclude therapists from offering armchair diagnoses like this in Court, but unfortunately, it occurs more than it should in high-conflict divorce cases and litigation. Just because someone has arguably behaved very poorly, does not mean that the person in question has a personality disorder or some other type of serious mental illness. Arriving at a correct diagnosis requires a clinical interview and formal evaluation, and anything less is not acceptable.
If you learn that a child requires a mental health consultation or treatment during a high-conflict divorce case, encouraging that treatment with respectful tact and care is advised. If the conflict is so high between the parents that they cannot agree on a treating mental-health professional for their child, the involved attorneys could work together on this and even involve the Court if necessary.
2. Don’t blur the line between a treating clinician (i.e., a therapist) and a forensic expert.
Some family law attorneys will attempt to turn a client’s therapist or a child’s treating clinician into a forensic expert. This occurs, for instance, when a therapist is subpoenaed to Court to offer formal recommendations regarding visitation and/or custody. A therapist is a treatment provider and as such can be both an advocate and fact witness for a client in Court. In contrast, a forensic expert is not a treater, but rather as an evaluator he or she is appropriately expected to offer formal recommendations in Court. When a client or a child’s individual therapist attempts, per the direction of a family law attorney (or at their own discretion), to offer formal recommendations for family members or the family as a whole (e.g., a custody arrangement), that therapist has violated his or her professional guidelines and ethics.
3. Don’t ask a mental-health professional to opine on an individual’s mental health without an evaluation or treatment.
It is not uncommon for divorcing parents to accuse one another of very serious wrongdoings involving their minor children – from neglect and abuse to drunk driving and exposure to inappropriate material (e.g., sex, pornography, etc.), family law attorneys are often perforce placed in the role of flushing out the truth. The same is true for accusations involving possible mental health conditions for divorcing parents. But again, just because a husband is behaving cruelly or narcissistically, doesn’t mean he meets criteria for Antisocial Personality Disorder or Narcissistic Personality Disorder. Similarly, one’s wife could rage and present herself as overly emotional and erratic without having Borderline Personality Disorder.
Thus, while some family law attorneys will ask a therapist to opine on a parent or child’s mental health struggles or offer up an armchair diagnosis without having evaluated or treated them, again, doing so would be a violation of the clinician’s professional guidelines and ethics. The Court is the more appropriate venue to directly argue for an evaluation or treatment when mental health struggles may be present in either a parent or child.
4. Don’t try to turn a psychological evaluation and/or parenting capacity evaluation into a custody evaluation.
While necessary at times, a Custody Evaluation can be a financially and emotionally draining, time-consuming, and unpredictable undertaking for all involved. Even when the expert is mutually agreed upon, parents relinquish much of their control to the expert when they consent to a Custody Evaluation. This can become problematic should the evaluator get things wrong for a family regarding custody and related matters.
Some family law attorneys will attempt to turn a Psychological Evaluation and/or Parenting Capacity Evaluation into a Custody Evaluation because to do so is less expensive and quicker. But arguing that a parent can or cannot adequately parent due to the results of their Psychological Evaluation (with or without a Parenting Capacity Evaluation) is an overreaching approach that could cause additional pain and harm to a parent and family and lead to a bad outcome. Psychologists who are trained to conduct Psychological Evaluations and Parenting Capacity Evaluations are precluded from offering formal recommendations regarding custody, for example, yet some family law attorneys will request a psychologist to do just that, and some psychologists will comply.
In my opinion, a Psychological Evaluation can be beneficial to the Court in that it accurately identifies and/or rules out problems and mental health conditions or diagnoses for the individual being evaluated. While conducting a Psychological Evaluation and Parenting Capacity Evaluation together does not substitute for the more comprehensive Custody Evaluation, doing the two evaluations at the same time will offer the Court additional information regarding one’s functioning and ability to parent. Where the Psychological Evaluation assesses one’s mental health functioning, a Parenting Capacity Evaluation assesses the important manifold aspects of parenting – the bond and attachment between a parent and child, a parent’s risk for neglect or abuse, a parent’s knowledge of their child’s developmental needs, a parent’s insight, impulsivity and flexibility, parenting style, etc.
5. Don’t go on a fishing expedition with evaluations.
Some family law attorneys will also have their client participate in a private Psychological Evaluation prior to Court in order to demonstrate that their client’s mental health is intact. And while the results of a private Psychological Evaluation do not need to be disclosed or reported during the divorce process should the results prove to be unfavorable for the client, in my opinion, this approach can be risky. Although a non-Court ordered Psychological Evaluation is private, I have seen this sort of information revealed when clients are queried firmly during depositions and contentious litigation.
Moreover, some family law attorneys will attempt to influence an individual’s Psychological Evaluation by providing the psychologist with documents and/or communications that support their client’s mental health and/or refute their divorcing spouse’s mental health. It is also not uncommon for family law attorneys to attempt to have the divorcing spouse’s voice and information in their spouse’s individual, private Psychological Evaluation. These things should not occur, but rather, the involved attorneys (not infrequently with the Court’s assistance) should agree in advance on which collateral documents the evaluating psychologist will be allowed to review as part of the evaluation. If a client misrepresents information during their evaluation, that reporting or information can be challenged or countered at a later time.
6. Don’t subpoena recklessly.
When people go to therapy, they assume that their personal information – their private thoughts and feelings – will remain in the therapy space. And while forcefully compelling a therapist’s treatment records or his or her testimony could greatly help an attorney’s case, there are some very real possible consequences to subpoenaing clinicians and/or a client’s private treatment information.
In my experience, it is more common than not for a therapy relationship to become damaged or for the therapy to terminate altogether after a therapist and/or his or her treatment information enters the adversarial Court space. Attorneys might challenge or argue with a therapist about aspects of a treatment or an individual’s needs or functioning to support a belief or position, but in doing so, information can be taken out of context and misrepresented. For example, I was once questioned repeatedly in Court by an attorney about the word “confused” that I jotted in my treatment notes as the therapist for a client during a high-conflict divorce. While that attorney tried in earnest to demonstrate to the Court that the parent’s “confusion” in my session represented her “delusional thinking” it most certainly did not.
While subpoenaing information and therapists to Court is oftentimes unavoidable, I think family law attorneys should take great care in how they obtain and rely on treatment information. Again, when a therapist is compelled to Court to openly discuss a parent or child’s therapy or to share the treatment chart, the therapy is usually compromised or it terminates altogether. I’ve unfortunately seen this occur hundreds of times in my career, and it is very sad to see important therapy relationships and treatments, especially for children, end in this way.
If at all possible, in my opinion, it is best for the involved attorneys to work together to obtain the information they need from a mental health clinician and to be mindful to not place undue strain on a parent or child’s therapy. Having a therapist prepare a statement that is shared with both attorneys (and possibly the Court), or having a therapist speak to both attorneys about the treatment in preparation for questioning and Court, could serve to respectfully preserve the parent or child’s therapy relationship. Of course, a document or phone call cannot be cross-examined in Court, but approaching the therapist and their records in a stepwise manner and with respectful tact is good practice.
7. Don’t hire a hired gun.
Some family law attorneys repeatedly turn to the same mental-health professionals for high-conflict divorce cases because these clinicians will do what the attorneys want them to do without considering what is in the best interests of the child or family. Certainly, therapists and forensic experts who compromise their ethics in this way may please their attorney referral source, but at too great cost. It is only a matter of time before judges, attorney colleagues, and other mental-health professionals learn who the hired gun mental-health professionals are in their community, and associations like that can become problematic for one’s reputation and career.
Thus, in my opinion, it is always best for family law attorneys to carefully select the best mental-health professional for the specific case; you may not win every high-conflict divorce case by choosing therapists or forensic experts with solid reputations and with impressive experience, training, and credentials, but the results should be more accurate and reliable for the Court, and thus, so too should the final ruling and outcome.
Michael Oberschneider, Psy.D, NCCE, NCPC, is a Nationally Certified Custody Evaluator and Parenting Coordinator in private practice in Northern Virginia. Much of Dr. Oberschneider’s practice is dedicated to working with families who are going through high-conflict divorces. www.ashburnpsych.com
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We at the Center for the Rights & Protection of Children caution use of the term “high conflict divorce.” The term “high-conflict” is a misnomer and has become a strategy to discredit the validity of child abuse and other forms of family violence. The term “high conflict” serves to reduce the impact of violence in the family. Thereby, labeling cases where child and domestic abuse are factors, as parents fighting over custody. The effect of such misnomer poses a grave threat to the safety and well-being of children involved in these matters.