What Can Family Law Learn from Psychology?

Using his unique background in psychology, David – who has written a best-selling book called “Moving On: Redesigning Your Emotional, Financial, and Social Life After Divorce” – shares the difference taking into account mental health can make in family law cases.

1. How do psychology and divorce go hand-in-hand?

In Family Law, which includes divorce, child custody, child support, alimony, and division of property, my clients are generally good people going through what is the hardest portions of their lives. They are not only losing their spouse, but they are losing their defined understanding of “family:” they may be losing time with their children, they are losing some of their assets, and they are losing some of their income by which they maintained their standard of living. Those are a lot of changes to get used to during a relatively short period of time.  And when people go through changes, they often experience a range of emotions, from: anxiety, to depression, to anger.  Things are even worse when people interpret these changes as “ego threats” – meaning they treat their failed marriage as an internal, personal failure, rather than a behavioural failure. They say to themselves: “I’m a failure” rather than saying “I’ve made some bad decisions”. So, divorce lawyers who “only” focus on the legal issues are leaving too many things unresolved and on the table.

Moreover, whenever parties in a divorce case litigate the issue of child custody, the Judge will typically call in a forensic psychologist to do an evaluation to advise the Court as to each of the parties’ psychological issues and their relative abilities to parent and to co-parent the children.  Not only do I understand the psychological evaluation process better than most lawyers, but I’ve also actually done these evaluations in my prior career. So, I’m in a good position to explain the process to my clients, to practice their psychological interview techniques, and to steer them away from many of the pitfalls that custody litigants typically fall into. My clients go into their custody evaluations knowing what to expect, what questions will be asked, and with my advice on how to best tell their own, personal stories in a way that the psychologist will understand, take in, and use in his or her analysis. That is not to say that I can train any client on how to “beat” or “win” a custody evaluation.  Psychological interviewing and testing are too good for that simple result. What I am saying is that my clients go into the process in a more relaxed, positive mindset, which allows them to be the best people they can be.

There are many ways that the social sciences are already tied into the family court system.

2. What difference does taking into account the psychological aspects (incl. mental health), during family law proceedings?

Each of my clients gets referred to a psychologist or therapist to help them through the various traumas and changes they are experiencing. That is not to say that all of my clients follow up on that referral, but some do. And the clients who do, inevitably get through the process on a much more even keel. I also typically work with the psychologist or therapist (with appropriate releases for the sharing of otherwise confidential information) to make sure that both of us know what is going on in the other’s office, but to make sure that we are working with our shared client in the best way possible.  When I can actively participate in my client’s attempts to address their mental health issues, I feel like I am more effectively helping them to move on to a more successful, enjoyable portion of their lives.

At the very least, even in cases where my clients do not hire a psychologist or therapist, I can work with them to teach them problem-solving techniques so they don’t get stuck in the middle of their problems without the means to help themselves get out. I very often explain the divorce process as falling down into a muddy puddle. The client has a choice: he or she can get up, clean themselves off, and figure out where they want to walk to next – or they can choose to continue sitting in the muddy puddle complaining about their situation. If nothing else, divorce presents people with an opportunity to move on.

3. What can social sciences being tied into the court system offer divorcing and separating families?

There are many ways that the social sciences are already tied into the family court system.

First, every child custody litigant is required to go through the mediation process at the Courthouse with a trained mediator. That mediation can potentially resolve the parties’ issues and can also help them to learn how to work together as co-parents, rather than as partners, to put their children’s issues to the forefront.

Second, in Los Angeles and many other counties, child custody litigants must also participate in a one-hour online course that is meant to teach the parties how not to involve their children in the litigation.  It is a simple, one-hour course, but it has so many valuable lessons.

Likewise, as I mentioned above, Courts are ready and willing to take information and even direction from the psychologists who perform the forensic psychological evaluations.

What’s more, the family law Judge always has the ability to order the parties to participate in individual therapy, in co-parenting counselling, or in family therapy, if the Court believes that the parties and their children will benefit.

Unfortunately, what I’ve seen from the pandemic, and what has been confirmed by basic statewide statistics, is that keeping people at home without the outlet for work and play outside the home, has put enormous stress on people’s interpersonal relationships.

4. What psychological impact can divorce have on children? When taking into consideration the psychology of divorce as a lawyer, what alternative approaches are offered during separation proceedings?

Although the psychological research literature is full of conclusions that children of divorce do not have to end up with deficits in their social and emotional functioning, all of that literature requires that the divorcing parents are able to get alone, act in a friendly way towards each other, and not denigrate the other parent.  That is the key lesson that I wish all divorcing parents would pay more attention to: When one parent says that the other parent is “dumb” or even when it is insinuated that the other parent is not acting in the right way, that tells the child that half of him or herself is “dumb” or not acting the right way.  I spend much of the first several hours working with my clients who have children trying to teach them how to start co-parenting with their soon-to-be-ex-spouse and how to avoid the negative speak that will hurt the children.

In fact, if the parties themselves can choose to get into mediation or some other form of alternative dispute resolution, rather than resorting to litigation, the rewards for themselves and especially for their children are numerous.  Parties who learn to compromise and work together early on will resolve their divorce more efficiently, with less money spent on lawyers, and less time spent trying to address stressful topics. That leaves parents with more time to spend on improving their own lives and to spend with their children.

5. Do you think the court system/ family law should take the psychology behind human relationships and wellbeing more into account? Why?

I think the most experienced family law Judges absolutely do already take into account the psychology behind relationships and especially with regard to custody decisions. A Judge who has spent only a few years on the bench has already seen and been part of thousands of custody cases, and has been forced to make thousands of custody decisions for parents who just could not bring themselves to get along. And, as I mentioned above, the Court has a whole “toolbox” of psychological interventions it can employ to try to steer the parents back to the right track.  Unfortunately, very often the Family Law Judges rotate frequently, so just when they are getting to be “expert” at applying these psychological theories and understanding towards the litigants, they are transferred somewhere else, and a new, inexperienced Judge transfers in.

6. How has the current pandemic impacted separation and family wellbeing? What lessons can be learned from this?

Unfortunately, what I’ve seen from the pandemic, and what has been confirmed by basic statewide statistics, is that keeping people at home without the outlet for work and play outside the home, has put enormous stress on people’s interpersonal relationships. As a result, divorce filings, and especially domestic violence prevention actions, are up over 40% since June of this year. People are calling my office and telling me, within the first several minutes of our first phone call, that they have to get out of their house, they can’t stand living with their spouse any more, and they want to know how quickly I can start their divorce.  And I can do that. But I first always suggest that the potential client participates in couples counselling, to make sure they have done everything possible to try to save their marriages.

DAVID J. GLASS

Certified Family Law Specialist*

PhD in Clinical Psychology

www.enensteinlaw.com

David Glass is the Managing Partner of Enenstein Pham & Glass, and Chair of its Family Law Department. His firm has six attorneys in their Family Law Department, two in their Real Estate Department, and the remaining 13 in their Litigation Department. Their central office is in Los Angeles, but they have offices in Orange County, CA, San Francisco, Las Vegas, Philadelphia, and New York.

David has a relatively unique background. He attended a dual-degree graduate program in Law & Clinical Psychology in which he obtained his JD as well as his PhD in Clinical Psychology. He got into the program intending to be a forensic psychologist with clinical practice.  But, after a short time, including time spent working in a psychiatric emergency room, he realised that he’d make a “pretty good” psychologist, but a “great” lawyer.  He has been practising family law exclusively for the past 23 years since he left psychology, but not a day goes by that he does not use his background and experience in clinical psychology to advise and improve his law practice.