Tuesday, May 31, 2011

A Community to Inspire

I feel incredibly privileged and lucky to be spending a year in New Zealand having no job but to learn new ways to make the family law system work for children and families. While my thesis is about the role of the lawyer for the child in what much of the world still calls custody cases, I started this blog because I keep coming across ideas that I want to share, and I hope that people will use this space to share their ideas, and together we can create a place to brainstorm and learn the best practices being utilized around the world.

In other words, I want this to be a community. I want it to be a community that reignites the passion and energy that brought so many of us to family law in the first place. I want it to be a community to learn what someone is doing down the street . . . or across a vast ocean. Together, we can make the system work. In my other blog, I talk a lot about community. My favorite post about community occurred just about a year ago, and today is the day to share that sense of community on this blog.

The post last year was a reflection on the Association of Family and Conciliation Courts Conference. I have been lucky enough to have grown up in AFCC; my father has been a member my entire life. But last year, for the first time, I felt like my own person there, and the community building, from teaching yoga in the morning, to hanging out in the hospitality suite at night, taught me that community is what makes change. Community is what inspires.

For anyone who has attended an AFCC conference, or perhaps another professional conference, you know that the energy they inspire is energy that translates to your practice back home. The discussions with colleagues old and new is a chance to learn about ideas and learn how other people deal with the stress that being a family law professional can create. It was at last year’s conference that I met a researcher here in New Zealand who helped me launch my survey to the lawyers for children. It was at last year’s conference that I first taught yoga to a group of people not during my teacher training.

In other words, community is about growth. It is about pushing our limits and finding out that we have support when we think it might be lacking.

I do not think there is any substitution for a real, in-person conference. Sure, we can get our continuing education credits online, and my hope is that this blog creates some sense of that same community, but it is not the same. The hope is that this blog can help continue the discussions that begin in person. I know that post was a year ago because this year's conference is this week - always the Wednesday - Saturday following Memorial Day. Although I am sad to be missing the conference this year, I know that it will be a source of inspiration to all who attend.

Come back here and share your inspiration with the rest of us. Only together can we ensure that the system we build is one that truly works for families, children, and our own sanity. 

What is your favorite way to engage with community, professionally or otherwise? Do you find that it helps you do your work better? What inspiration do you find in community?

© 2011 Rebecca Stahl, all rights reserved

Tuesday, May 24, 2011

Parental Alienation Syndrome - The Starting Point

In the last post, I responded to Dahlia Lithwick’s article in Slate regarding Parental Alienation Syndrome indicating that the major problem with her article was its one-sidedness. Today, I would like to address the substance of parental alienation and give a slightly more nuanced view of the situation that has given rise to the current discussion. There is absolutely no way to explain this issue fully in a blog post, but the point is that the debate surrounding parental alienation syndrome is much broader, and not quite as scientific vs. disillusioned that Lithwick implies.

The catalyst, I believe, for Lithwick’s article is the fact that there has been serious discussion about including Parental Alienation Syndrome in the Diagnostic and Statistical Manual (“DSM”) V. As I mentioned, the Association of Family and Conciliation Courts had a plenary about this topic at its annual conference last year in Denver – a conference that focused significantly on the issues surrounding alienation. Attendance at that session left me with two main takeaways: 1) Including PAS in the DSM V is problematic because a) it forces us to label the child as having a psychiatric disorder, and b) there is no need to have a labeled syndrome to address the issues, and 2) the behaviors that often give rise to the label of PAS are real, and we must deal with them on their merits, regardless of any label we give those behaviors.

The entire conference left me with the broader impression that these issues are not macro; each case is different, and each case needs to be considered with respect to how and why children and parents are behaving in particular ways. There is nothing black and white about individual families, especially when dealing with issues of alignment, estrangement, possible abuse, memory, and “truth.”

The first problem is that there is no single definition for PAS; instead, we can say it usually entails a child rejecting one parent as a result of the other parent making false allegations against the rejected parent; the child begins to believe these false allegations, thus leading to rejection of the alienated parent. Richard Gardner, the man who coined the phrase Parental Alienation Syndrome, believes that in extreme cases, the child should be forced to live with the alienated parent in order to heal the relationship (and perhaps punish the alienating parent). Those absolutely opposed to the notion of PAS say that the rejected parent is usually an abuser, and the child and aligned parent reject with good cause. This labeling between PAS and abuse leave little room for debate. More importantly, it leaves no place for individual interventions in individual families.

There is no question that alienation is an issue in family courts across the world. The arguments transcend borders, and allegations abound – one side arguing that abuse has occurred and the other arguing that alienation has occurred. In other words, the ultimate zero-sum situation. Studies have shown that there are numerous reasons that a child may reject a parent, and while there are times when alienation is the reason, there are times when normal development affects how a child aligns with his or her parents, and there are times when abuse is real. By labeling all estranged behavior as alienation, we ignore that there can be any number of explanations, each of them as likely as another on the macro level.

There are levels of estrangement and alienation, from mild to severe. A mild case might be one parent making off-hand comments about the other parent and the child feeling put in the middle enough to begin to think less highly of the parent being maligned. This can happen even with a parent who does not intentionally try to influence the child’s feelings towards the other parent. Severe alienation occurs when a parent makes a child believe that the other parent has been abusive and therefore the child absolutely rejects seeing the alienated parent even if that parent never really did the things of which that parent has been accused.

The situation is difficult to assess because the child may actually believe something that never happened. The more we learn about memory, the more we learn how unreliable it is – especially in children. But that does not change the fact that a child may believe that a parent was abusive and thus reject that parent. Memory is subjectively real, even if objectively the act being remembered never occurred. Thus, determining truth in any particular case is difficult, and sometimes impossible because each person has his or her own subjective truth.

Thus, on the macro level, there can be no solutions; we cannot name it as a syndrome, put it in the DSM-V and assume that this will solve the problem. Instead, the professionals involved must evaluate all the facts – everyone’s facts. But we must also move forward from those facts. We may never know the objective truth in these cases; each person has his or her subjective truth, and that is something we must accept. The point is that each subjective truth may be that alienation and/or abuse has occurred. From there, we have to find a way to ensure that children are harmed as little as possible.

So, is it a syndrome? That may never be determined. What we do know is that the problem is real, and children are caught in the middle. Rejecting it outright under the assumption that it is pseudo-science only harms the children who are caught in the mess of their parents’ controversy. Recognizing that the behaviors exist and that each case must be evaluated on its own merits means that the macro argument of right vs. wrong is over, and forces us to get our hands dirty and try to understand how to move forward. Arguing about the past debate surrounding the name of a disorder is not going to help the individual children and families harmed by professionals arguing about whether it should be a label.

There is certainly a bigger discussion to be had, but this is a very simple beginning – a move away from labels and macro thinking to individuals and understanding that truth is subjective, especially with these emotionally-charged issues. What we do with this will have a huge impact on our ability to serve children and families struggling to find their place in a system that promotes accusations because of the need to have someone win and someone lose.

© 2011 Rebecca Stahl, all rights reserved

Sunday, May 22, 2011

A Response to Dahlia Lithwick on Parental Alienation Syndrome

The other day, Dahlia Lithwick, wrote an article in Slate about Parental Alienation Syndrome called, “Mommy Hates Daddy, and You Should Too: The extraordinary fight over ‘parental alienation syndrome’ and what it means for divorce cases.” A friend shared it with me, and it made me fairly angry, so I took some of my own advice and waited to respond rather than react. But I think the existence of this article says a lot about what we need to do as a profession in terms of changing the rules . . . for ourselves and the families we serve.

First, why was I angry? Personally, I have a lot of respect for Dahlia Lithwick. Other than family law, the class I loved most in law school was constitutional law, and Lithwick used to write the Supreme Court articles for the New York Times. She was great at seeing all sides of an issue. In fact, the same friend who share this post with me shared her other one – a post about how we might need to think judicial review. That is a radical idea, and one with which she admitted she was uncomfortable, but she wrote about it anyway because it is an important issue to consider.

Thus, I was most upset by the fact that her article is so one-sided on a topic that has layers and layers and layers of complexity. The article is about the impending decision on whether to include Parental Alienation Syndrome (“PAS”) in the Diagnostic and Statistical Manual V (“DSM”). The Association of Family and Conciliation Courts conference had a plenary on this last year in Denver (and their conference in Orlando is coming up next week). This is an important issue, and it requires more than a single post on Slate to discuss, perhaps most because of something Lithwick points out herself, “The most worrisome aspect of the legal fight over parental alienation syndrome may be that it divides supporters and opponents along strict gender lines: As a rule, this is classed as a women's sickness alleged by men.” What this means is that it is an emotional issue for many people, and it forces people to take sides. The debate keeps people from hearing the other side. Each side has its experts and supporters, and if left to this status quo, the discussion could stay there. There are many willing to have the discussion, but when the loudest people are the ones fortifying the divide, their voices are silenced.

Lithwick then takes the big picture approach and chooses one side, so much so that she denies those opposed to her viewpoint any ability to think rationally in her worldview. She says, “There are a lot of websites, experts, and emotion invested in this debate. But there aren't two empirical sides. There is science, and then there is passionate non-science.” She bases this statement on the fact that many well-respected organizations in the United States have recognized that the theory underpinning PAS is invalid, including the American Psychiatric Association, the American Medical Association, and the National Council of Juvenile and Family Court Judges.

Lithwick gets close to the real issue when she discusses the people who talk about PAS not as a syndrome, but as a set of behaviors. It was there that my anger almost dissipated . . . until she failed to continue down that path. She did what the system tends to do so often, and what harms the families who enter it so much – she paid short shrift to the real issue, to the difficult discussion, to the nitty gritty, instead focusing on words and symptoms that have broad meaning and little meaning to individual people. She used her platform to silence the gray areas, and she fortified the black and white positions.

Thus, the biggest danger I see with Lithwick’s article is the fact that it is in Slate, and she is so well respected. People have reason to believe it tells a fair story. But what it does is exactly what the system often forces people to do – it pits one side against the other with no space for gray. It says that one side is supported by science and the other side only by passion. Even the title of the piece hits this dichotomy – it only refers to divorce, as though divorce is the only time that the issues surrounding alienation can occur. It is not.

The truth is much grayer, and the one thing for which I am most grateful to Lithwick is that she inspired me to go down the path of PAS so soon. Therefore, the next post will focus on this gray area, on the debate's substance. But the point for this post is that we can have our discussions as professionals, and we can discuss best practices and how to help children and families, but one of the most important things we can do is educate – educate our clients, educate the public, and even educate the media. We can educate that life need not be so black and white even in an adversarial system (which hopefully will change as well).

We need to move into the gray. We need to have the truly difficult discussions without thinking that one side is fully supported by science and the other side only by passion, as though being driven by emotion is a problem. Families are about emotion. They are also about science. But most importantly they are individualistic, and when we start thinking too globally we lose sight of the very people standing right in front of us.

I think the world of Dahlia Lithwick, and I hope that she joins this discussion with all of its nuance. I think she has a platform from which she can spread great information. But it needs to be fully engaged. In the next post, we will discuss more of the gray that surrounds PAS or the behaviors that have led people to believe that a syndrome is gospel.

What did you think when you read her article?

© 2011 Rebecca Stahl, all rights reserved

Wednesday, May 18, 2011

Learning from the Outside

As I mentioned in the last two posts (here and here), this post is going to focus on an interdisciplinary model, specifically one promoted by Professor Barbara Babb at the University of Baltimore, where she directs the Center for Families, Children & the Courts (“CFCC”).

The CFCC operates with two main objectives: to promote therapeutic jurisprudence and to promote the ecology of human development. Both of these are ideas that will be more fully developed in later posts, but what is important for right now is how we learn to utilize these approaches in family law. It requires looking outside of our traditional ideas of who we should invite to the table.

First and foremost, we must begin to engage social scientists more broadly. As Babb mentions in her article, An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective, 72 Ind. L.J. 775 (1997), “Oliver Wendell Holmes argued in the late nineteenth century that a better understanding of the social world must inform our knowledge of legal rules in order to effectuate rational justice.” In other words, we must understand the people we serve in order to create a system that works for them. There is more to social research than child development (though that is very, very important, it is not the end-all, be-all of social importance to families).

So what are we failing to see? After all, psychologists are deeply imbedded in the family law system. We often call upon them to explain child development and to write custody evaluations for particular cases. And while I generally think it is much more useful to families to take an individualistic approach to their situation and evaluate each case on its merits, here we are talking about the system as a whole and what it needs to recognize. 

A broader evaluation of the social sciences has shown us that a family is not defined by a mother, father, and children. Instead, the influences are immense – from extended family to religious groups, to neighbors, and beyond. A family does not exist in a vacuum, and when we fail to account for these influences, we fail to serve families. Instead of keeping people out of the courtroom, we can invite more people into it. Judges should ask to hear from people who support the family. Some already do. But does the system require it? Is the system designed to take these issues into account? Unfortunately not.

In an older post, we discussed how there can never be too many people to love a child. The same holds true for an entire family. Society requires people that are going through a divorce or unable to determine parental rights and responsibilities, to enter the court system. Instead of getting a full picture of these families, however, the system tries to take a snapshot. When was the last time the photo lived up to your memory of the event? Our eyes can take in so much more than technology, and our system needs to be able to take in more than specified factors relating to wishes and some information on child development than the brief snapshot allows.

Are we ready to trust others to teach us what we are missing? Are we ready to ask what else matters to families? Are we ready to truly understand families? Or are we going to continue to base our system on an adversarial model limited to two parties where we determine that some evidence is relevant while that which truly forces people to act remains hidden by our lack of understanding? Certainly it is easier to stick to the status quo; after all, rules of evidence tell us what is relevant to the legal issues. It also takes less time and fewer resources. But how many resources do we waste when people have to come back because we missed the boat the first time? The more we recognize that families are not defined by statutes but are actually defined by the people and communities in which they find themselves, the more we will be able to help them navigate the system well . . . the first time.

What research have you seen that challenged what you thought of families? How have you, as a professional, attempted to bring these issues to the forefront? Have you been successful?

© 2011 Rebecca Stahl, all rights reserved

Wednesday, May 11, 2011

What does everyone do in this system anyway?

As I mentioned in the last post, today we are going to focus on an interdisciplinary model. While I wanted this post to highlight that model, I thought that it would be more prudent to go up the abstraction ladder and talk about the lack of communication between the various professionals in the system. 

I am a lawyer. Thus, the profession I understand best is lawyers. My father, however, is a psychologist, and discussions about custody evaluations permeated dinner conversations of my childhood. Lawyers, judges, mediators and psychologists are the professionals we most often think about in a family law case. If we add in the dependency system (and I think we should), all of a sudden the number of professionals involved increases exponentially to include social workers, therapists / counselors, those who work with addictions, childhood behavioral specialists, etc.

In the United States specifically, but also around the world, professionals are specialists. We are trained to do what we do, and we are not expected to understand what other professionals do. I cannot recall how many times I have heard the phrase, “we are lawyers, not social workers” uttered by lawyers not wanting to get too involved with the family, and instead to keep the fictional distance between themselves and their clients. In other words, we like to keep our professional boundaries, both between us and our clients, but also between us and other professions.

It is always a breath of fresh air to me to talk to someone who has a dual degree, or who was in one profession for many years, and then decided to go back to school and learn about another profession. The wealth of information and experience that they bring to discussions, and their ability to see outside the professional box created in our training is eye-opening.

Sadly, they are not the norm, and we are stuck specializing in a system that defies any specialty. Family law is just that; it is legal, a set of standards created by the State and imposed on people who are unable to make their own decisions, either about their marriages or how to raise their children safely. But families are not legal. Families are emotional. They are the center of what makes us human. And this is why so many different people get involved in a family law system. It is why we cannot force specialization on families. 

But we are left with a dilemma. Lawyers are trained to be lawyers, and psychologists are trained to be psychologists. Lawyers cannot understand why a psychologist “refuses to answer the questions asked,” and psychologists cannot understand why lawyers only see the world in black and white. As my law school clinic supervisor reminded us, everyone in the system has an agenda. 

But if we are going to create a system that works for children and families, we must begin by understanding the different people that are involved in the system. We must accept that generally, people involved are doing their best by the families. We must begin by asking questions and trying to understand the goals of other professions and professionals. I currently know of only one truly interdisciplinary organization – the Association of Family and Conciliation Courts. It is at AFCC conferences where I have the opportunity to ask these questions, where I can learn what drives others in the system. But outside of AFCC, I work with lawyers. I talk to lawyers. I am a lawyer.

So, our first step is to reach across the aisle and begin to understand, to make our agenda not only that which we were taught in our specialties, but creating a different system. From there, we can begin to work together to change the system to one that works for families and children. No profession has all the answers, but as we learn to understand each other, we may be able to find the answers together.

Please use the comments to share one thing you wish other professions understood about yours or one thing you simply do not understand about others. Try to be kind. Let us begin the discussion and move forward together. 

© 2011 Rebecca Stahl, all rights reserved

Sunday, May 1, 2011

Stuck in Hate?

My LLM research got a little tangential to the actual topic, but it has led me to read some wonderful articles. While these articles may not be in the LLM, they are definitely worth sharing and discussing here. I hope to continue to feed this blog with articles I encounter along my research. The first one is an article by Clare Huntington, a professor at the University of Colorado law school. The article, entitled “Repairing Family Law” is available at 57 Duke Law Review 1245 (2008).

The article discusses several issues, but I want to focus on its main point. Huntington takes us through a cycle of family emotions made famous by Melanie Klein; it includes four stages: love, hate, guilt, and the drive to repair. In short, the notion is that love often leads to a breakdown called hate (a term of art here referring to both the emotion and the rupture without repair), which leads to a feeling of guilt, and eventually to a drive to repair the relationship, often in a different form. In this sense, guilt is a feeling of remorse for the hate and the destruction of that which used to be loved, which then leads to the drive to repair. In her introduction, Huntington states, “Through its substance, process, and practice, family law reifies hate, in both the symbolic and real sense, freezing relationships at the moment of breakdown.”

This cycle seems a bit simplistic to me, especially coming from a yoga perspective (more on that connection to family law in another post), but it definitely provides a nice setting for Huntington to discuss the inherent problem she sees in family law – that it freezes in time the moment of hate without allowing people to continue through the cycle. Whether you accept Klein’s cycle or believe that it misses the mark, there is little doubt that the current family law system is about that moment of severance more than it is about repairing the future relationships.

Family law, especially custody matters, force people to stay in the zone of hate. If a case goes to trial, parents are “rewarded” for bringing up the worst facts about an ex by having more parenting time with their children. The dredging through old emotions and fault was supposed to go away when we went to a no-fault system, but instead it just moved to a new dimension – the one that most involves the children.

Many family law practitioners and judges talk about the need to create a “clean break” when a relationship breaks down, and we try to get families through the system as quickly as possible believing that spending too much time in limbo is detrimental to families. As I mentioned in the last post, however, family law is about more than divorce – it is about families. And unlike that moment of a clean break in a contract, families simply do not work that way. Instead, these families are going to have to stay connected through children, even as those children grow into adults. Focusing our work on a specific moment in time is one of the first ways we fail families and children as a system.

So what could we do differently?  The first step is to understand this dynamic and discuss it with the parents and families we encounter. We need to give them the space and the time to be open to new ways of thinking. Huntington calls this the Reparative Model, one that focuses on repairing these relationships by ensuring that the professionals in the system fully understand what is at stake and how it affects families. In turn, this will ensure that we are preparing these families to reorganize around a new way of being. While we have moved from divorce to dissolution, we have never picked up the next step – solution.

In the next post, I will look at another model that focuses on and interdisciplinary approach by Barbara Babb at the University of Baltimore.

What do you do to ensure your clients move through their hate, angst, vengeance phase to a place where they can repair and reconstruct a family for the future?

As always, comments and discussion are welcome and encouraged.

© 2011 Rebecca Stahl, all rights reserved