The Role of Psychology in Family Law over the Last 50 Years

It is sometimes said that the law struggles to keep up with societal developments. Undeniably, however, the social sciences, and most notably psychology, have played a significant role in family law developments over the past 50 years. Although arguably slow to change, our legal system is indeed evolving. We no longer abide by the time-honored assumption that legal disputes are best resolved in a courtroom. In fact, litigation of family law disputes is now considered a last resort. Along with changes in how disputes are resolved, our laws have begun to eschew traditional gender presumptions, particularly with respect to custody arrangements for children.

Movement Away from the Tender Years Presumption

Perhaps the most radical change we have seen in family law has been the abrogation of the “Tender Years Presumption.” This old-fashioned hypothesis operated for nearly a century to automatically award the custody of young children under the age of seven to the mother, who was presumed more capable of providing the necessary nurturing.[1]

The presumption came under attack in the second half of the 20th century.[2] It began to be viewed by the courts as unrealistic because mothers were pursuing careers and were sometimes absent from home as much as fathers. Freudian psychology and the work of child development specialists began to focus more on the emotional needs of children.[3] Courts began to recognize that, absent unusual circumstances, children benefit from the involvement of both parents in their lives.

Currently, courts utilize an individualized best interest analysis in which a multitude of factors are considered to ensure that the physical, emotional and psychological needs of the children are properly addressed by the custody arrangement. Tennessee’s child custody statute was revised in 2011 to state, in part, that “[i]n taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10), the location of the residences of the parents, the child’s need for stability and all other relevant factors.”[4] This shift in the law was influenced by the demands of fathers’ rights advocates as well as the “overwhelming weight of social science.”[5] Although there is not currently a presumption of equally shared parenting time between both parents, it is possible and foreseeable that the new standard could lead some judges to increase parenting time for alternate residential parents and could even lead to the equal division of parenting time between parents more often than has occurred in the past.

Psychology’s Role in Addressing Domestic Abuse

Over the past 50 years, there has been more awareness of, and increased intolerance for, domestic abuse. Four separate studies were conducted between 1968 and 1994 by the National Commission on the Causes and Prevention of Violence. In an effort to determine the approval of marital violence by American adults, respondents were asked the question: “Are there any situations that you can imagine in which you would approve of a husband slapping his wife’s face?” and “Are there any situations that you can imagine in which you would approve of a wife slapping her husband’s face?”[6] In 1968, just over 20 percent of respondents indicated that they would approve of a husband slapping his wife in certain circumstances.[7] The percentage declined in each subsequent study. By 1985, approximately 13 percent of respondents approved, down to 11 percent in 1992 and approximately 9 percent in 1994.[8] In contrast, the percentage of the U.S. population who approved of a wife slapping her husband’s face remained virtually unchanged between 1968 and 1994, at approximately 21 percent.[9] It is curious that female versus male violence is no less acceptable now than it was several decades ago. Perhaps this will change over the next 50 years.

Most abusers have no contact with the judicial system until the victim seeks a divorce or legal separation and custody of the children is contested.[10] As recently as the 1970s, little was known about the negative impact on children of domestic violence by one parent toward the other parent.[11] More recently, states came to recognize the importance of considering domestic violence in custody decisions.[12] As of 2007, every U.S. state now lists domestic violence as a factor to be considered in custody determinations.[13]

Recent studies have suggested that children do better psychologically when they have both parents present in their lives, even if one parent is seriously flawed.[14] Therefore, if at all possible, rather than severing ties between the child and an abusive parent, courts try to fashion custody arrangements in a way that allows the child to feel safe. Depending on the severity of the situation, parenting arrangements might allow for limited visits with the abusive parent, or supervised visits with the abusive parent that take place only in the presence of approved witnesses. There are, however, extreme circumstances in which removal of parental rights is warranted.[15]

Increased Use of Alternative Dispute Resolution

As psychology has evolved over the past 50 years, family law reformers, recognizing the damaging nature of an adversarial family law system on families in the midst of divorce, have retreated from fault-based litigation in favor of less adversarial proceedings such as mediation, arbitration, settlement conferences and collaborative law.[16] Parties who work together and make a good faith effort to resolve their disputes through mediation or another form of alternative dispute resolution tend to recognize the negative psychological impact of adversarial proceedings and take steps to avoid the consequences of a high-conflict legal dispute.

When the concept of mediation first arose in the family law setting, such techniques were used originally to assist parties in reconciling rather than facilitating a divorce.[17] In 1939, California was the first of several states to have court-sanctioned “conciliation services” intended to help couples avoid divorce. If such “conciliation counseling” was not successful, the focus shifted to divorce counseling and mediation.[18]

In the early stages of the development of the concept of mediation, the family mediation movement was interdisciplinary, but mental health professionals predominated the movement toward mediation. By the early 1980s, mental health professionals comprised nearly 80 percent of private family mediators and 90 percent in the public sector. It was not until the 1990s that a shift occurred toward using attorneys as mediators.[19] Mediation has been such a successful method of resolving family law disputes that in Tennessee, it is now a mandatory prerequisite to trial, absent extenuating circumstances.

The newest form of alternative dispute resolution in the family law arena is the collaborative law approach. The parties retain professionals including attorneys, financial experts and mental health experts. Often just one neutral mental health professional is utilized. The parties, along with the professionals, work cooperatively to gather and share all information needed in order to reach an agreement. The process is based on a pledge to avoid court, with an open exchange of information. The use of collaborative law has seen its fair share of criticism. It has been described by some as the result of lobbying by “psychology and other mental health trade organizations … for more and more business in the family courts over the past two decades” and “the mental health industry … descend[ing] like a cloud of locusts upon the emerging new dispute resolution field of collaborative law, threatening to consume it.”[20] In practice, however, the process has been a satisfying and successful method and experience for many parties.

The advent of “parenting coordinators” is another fairly recent outgrowth of the use of alternative dispute resolution. Over the past several years, the field of psychology has brought to states’ attention the harm that parental conflict inflicts on the mental health of children involved in custody disputes. While most parents are able to reduce their anger and conflict in the first two to three years following divorce, research has shown that between eight and fifteen percent of divorcing parents continue to engage in intense conflict long after this initial settling-in period.[21] Psychologists, working with family court judges and researchers, have begun to explore alternative intervention techniques that mitigate the effects of such conflict on children. A number of states, including Tennessee, have begun to appoint parenting coordinators in otherwise high-conflict custody cases.[22] The concept dates back to the early 1990s. Parenting coordination is “a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high-conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about how their children’s needs can best be met, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract.”[23]

Increased Use of Mental Health Experts in Court Proceedings

We have seen a noticeable increase in the use of mental health experts in family law court proceedings over the past 50 years. Such experts typically are utilized in support of either direct research claims or science-based practice claims.[24] The former type of claim involves the expert making direct reference to findings from a particular study or body of literature.[25] For example, in the 2004 California case of In re Marriage of La Musga,[26] psychologists filed competing briefs as Amici Curiae on behalf of minor children in the state of California regarding the effects on them of parental relocation. The court ultimately relied upon the briefs filed by the psychologists in making its ruling, and the case became a seminal decision in the state of California regarding custody determinations in cases of parental relocation.

In making a science-based practice claim, the mental health expert proffers information to the court, usually about a specific party in the case, formed from the expert’s assessment of that party based upon scientific literature.[27] For example, psychological evaluations of parents and sometimes of children (parenting plan evaluations) are becoming increasingly common in highly adversarial or complicated child custody proceedings. A mental health professional might testify as to what kind of custodial arrangements would be most beneficial psychologically, or potentially harmful, to the child now and through the age of majority.[28]

Conclusion

For good reason, family law is considered by many to be more “touchy-feely” than it was 50 years ago. Family law attorneys and judges as a whole appear to be more open-minded these days. We are open to utilizing a multidisciplinary approach and thinking outside of the box. We no longer assume that we know everything, and we are more willing to thoughtfully consider the useful information to be gleaned from other disciplines such as the social sciences. This is how our legal system evolves to reflect societal change.

Notes

  1. Linda Henry Elrod & Stephen C. Windsor, Family Law and Practice §32.06 (2012).
  2. Id.
  3. Katheryn D. Katz & Dawn Gray, Child Custody and Visitation §1.04 (2012).
  4. Tenn. Code Ann. §36-6-106(a).
  5. Robert Franklin Esq., June 9, 2011, http://www.fathersandfamilies.org/2011/06/09/tn-governor-signs-bill-requ...
  6. Murray A. Strauss, Glenda Kaufman Kantor, David W. Moore, “Change in Cultural Norms Approving Marital Violence from 1968 to 1994” in Out of the Darkness; Contemporary Perspectives on Family Violence 3, 4 (Kaufman Kantor, Glenda & Jasinski, Jana L. eds., Sage 1997).
  7. Id. at 7.
  8. Id. at 11.
  9. Id. at 7.
  10. Dina McMillan & Merritt L. McKeon, Child Custody and Visitation §7.13 (2012).
  11. Daniel G. Saunders Ph.D., Child Custody and Visitation Decisions in Domestic Violence Cases: Legal Trends, Risk Factors, and Safety Concerns (Revised 2007).
  12. Id.
  13. Id.
  14. McMillan, supra.
  15. Id.
  16. Clare Huntington, “Happy Families? Translating Positive Psychology into Family Law,” 16 Va. J. Soc. Pol’y & L. 385 (2008-2009).
  17. Debra Berman and James Alfini, “Lawyer Colonization of Family Mediation: Consequences and Implications,” 95 Marq. L. Rev. 887 (2012).
  18. Id.
  19. Id.
  20. “Collaborative Law, Collaborative Divorce: What’s Wrong with Multidisciplinary Practice Groups?” http://www.thelizlibrary.org/collaborative-law/whats-wrong-with-multidis....
  21. “Guidelines for the Practice of Parenting Coordination,” 67 American Psychologist 63 (2012).
  22. Id.
  23. “Guidelines for Parenting Coordination,” AFCC Task Force on Parenting Coordination, May 2005, page 2.
  24. Robert F. Kelly and Sarah H. Ramsey, “Assessing and Communicating Social Science Information in Family and Child Judicial Settings: Standards for Judges and Allied Professionals,” 45 Fam. Ct. Rev. 22, 25 (January 2007).
  25. Id.
  26. In re Marriage of La Musga, 88 P.3d 81 (Cal. 2004).
  27. Kelly, supra.
  28. Fredric B. Nalven, Child Custody and Visitation §22.02 (2012).

Marlene Moses MARLENE ESKIND MOSES is the principal and manager of Moses Townsend & Russ PLLC, a family and divorce law firm in Nashville. She is the immediate past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyer’s Association for Women, and the Tennessee Supreme Court Historical Society. She has also served as vice president for the United States Chapter of the International Academy of Matrimonial Lawyers. The Tennessee Commission on Continuing Legal & Specialization has designated Moses as a Family Law Specialist; she is Board Certified as a Family Law Trial Specialist.