Roy Lubit MD, Ph.D.

Psychopathy

Introduction

The concept of psychopathy is very important to forensic work, and forensic evaluators need to be conversant with it. Psychopaths generally do not go for therapy, and when they do they are usually able to fool their therapists into believing that they are warm caring individuals who are unappreciated and mistreated by those around them. Clinicians have little way of knowing whether the person is telling the truth and tend to believe their patient. Clinicians who do couple’s therapy will at times run into situations in which the spouses present markedly differing stories and one of the spouses will be accusing the other of behavior which fits the psychopathic mold. The therapist, however, usually has little means of finding out who is telling the truth and is likely to believe that both parties are putting remarkable spin on events, or to believe the version of events provided by the charming psychopath, rather than the anxious and traumatized partner.

In doing forensic evaluations it is very important to be familiar with the existence, signs and symptoms of psychopathy. These individuals’ charm and verbal abilities present a high risk of fooling the forensic evaluator. Moreover, the impact of being fooled can be very serious for those with a stake in the legal process. In custody battles psychopaths have an enormous capacity to convince people that they are caring parents who have been falsely accused of being harsh and inappropriate, and that they are the victim in the marriage, rather than the problematic spouse. The result is that the children are placed with a very disturbed parent. In personal injury suits evaluators need to beware lest the psychopath’s charm leads to overlooking evidence indicating that the suit is based on false complaints. In criminal cases, psychopaths may convincingly turn attention away from themselves even though they are the most dangerous of criminals, since all else being equal, psychopaths are more likely to engage in violence and to offend again than are non psychopaths.¹

Many psychopaths are criminals. Many, however, are not. Robert Hare Ph.D. writes of subcriminal or white collar psychopaths, people who are callous, manipulative and egocentric, but who have sufficient social skills, intelligence and education to present as normal and function in professional positions. While many people are unscrupulous in business dealings while empathetic and fair in their personal lives. Subcriminal psychopaths engage in their problematic behaviors in all facets of their lives.

Description of Psychopathy

The most prominent features of psychopathy are (1) the ruthless pursuit of what they wish through manipulation and aggression, (2) lack of concern for the rights and well-being of others or the impacts of their actions on others, and (3) a remarkable propensity for risk taking. Their risk taking appears to be fueled by a combination of a failure to learn from experience and a desire for excitement.²

In Without Conscience, Robert Hare writes that psychopaths are “Completely lacking in conscience and in feelings for others, they selfishly take what they want and do as they please violating social norms and expectations without the slightest sense of guilt or regret.” They appear to lack the social emotions of empathy, guilt and remorse which normally inhibit people from engaging in instrumental aggression.³ They have a remarkably able to externalize blame and rationalize their actions. The lack of true empathy and caring for others is hard to comprehend since empathic responsiveness is so central to the human experience and to having relationships. The psychopath does not feel others’ pain, even of those they allegedly love.

For a psychopath love is about what one gets and not about what one gives. For a psychopath love consists of wanting the person to be part of their life and to obtain things from the other person (companionship, affection, respectability, attention, an audience). In real love, people value the other person’s well-being and happiness as much as their own and at times sacrifice their personal preferences to promote the well-being of the person they love.⁴

The ability of the psychopath to understand the feelings of others on an intellectual level, at the same time that they do not feel an empathic connection and a need to respond to others’ needs, provides them with considerable power.⁵ Unrestrained by actual caring, psychopaths use their understanding of the feelings of others to manipulate and deceive. The psychopath may feign concern and say the socially appropriate thing, but their actions show that their expressions of warmth and concern for others are hollow. They only respond to the needs of others when it is convenient for them, or they are likely to directly benefit from being responsive by gathering the good will of observers. Gracious and generous when it will clearly benefit them. They will ignore strong and legitimate needs of those they allegedly love when it is inconvenient for them. A psychopath may profess love for their spouse and children and then not only have an affair, but engage in one that is particularly hurtful by doing it with someone their spouse and children are close to. A parent may spend lavishly on gifts that bring praise, and then fail to provide needed essentials. If a child or spouse is ill the psychopath may give TLC if it is convenient, but will ignore it or even deny there is a problem if it interferes with what the psychopath wishes to do that day.

Their self-centeredness is extreme, since there is no real love for others. Or rather, love for them consists of needing someone else, rather than valuing the other person’s well-being. The psychopath is totally indifferent to the hardship he or she wreaks on those he professes to care about. He may speak the right words and utter the right emotions at times, but there is no substance behind it. He may express appreciation and even apology but the words are not followed by deeds. They may engage in showy acts of generosity to gain praise, but then fail to fulfill important obligations that cause great difficulties for those they are obligated to. 

Another emotional deficit in psychopathy is a markedly impaired ability to learn from experience. Painful and destructive experiences that would lead most people to avoid risky courses of action do not deter psychopaths. Psychopathic individuals may appear wise when talking about what others should do and even about what they should do. Thought does not translate into wise actions, however. They may talk about what they need to do to succeed at work and to stay out of jail and to make a relationship work, but their spoken knowledge is not followed by appropriate actions. When presented with the actual situation the psychopath will rush ahead doing what he or she had said would be foolhardy. They will make the same mistake over and over, have affairs, steal, lie or do whatever seems convenient at the moment, even after they have been repeatedly caught and suffered consequences and clearly articulated the risks of these actions. Research indicates that there is impairment in their ability to develop conditioned responses.

Acting synergistically with the failure to develop conditioned fear responses is selective attention to information that is consistent with their goal and a tendency to bypass and not attend to discrepant information.⁶ When it comes to weighing the risks and benefits of actually doing something psychopath’s estimates are markedly overly optimistic for getting away with things. In addition, punishments also weigh less heavily on them than on the average person. Psychopaths do not suffer the guilt and self-criticism most people are subject to that inhibits us from engaging in overly risky acts. Therefore, their calculation of the potential cost of failure is reduced.

Further promoting their remarkable willingness to take risks is a desire for excitement to fill the void left by their inability to feel true closeness. They seek excitement and fulfillment by manipulating others.⁷ They seek power for power’s sake, and not simply for its ability to concrete ends. Lacking an instinctual sense of disgust at scenes of human suffering all that is left for them when faced with human suffering is excitement.

The excitement of getting away with something, and of making fools of those they are upset with (even if they also supposedly love them) can drive their behavior. For example, one charming psychopath not only had sex with one of his adult stepdaughters for years, but went on to have sex with her younger sister as well. This man, a professor, had access to innumerable coeds of the same age. The issue was far more than simply desiring to feel young by having sex with a younger woman. When I met with him his first words were that the women in the family were crazy. His externalization of blame is classic for psychopaths.

Psychopaths have a lust for power and feel rage toward those who challenge their power. Research has shown a strong correlation between psychopathy and indirect aggression among non criminal psychopaths, as well as a strong correlation between psychopathy and direct aggression in criminal psychopaths.⁸ They desperately wish to cover over mistakes and do not apologize with any real sincerity.

The behavior of psychopaths vacillates from charming and poised to irritable and provocative. When engaged in trying to win someone over and hide that they are troublemakers they can be charming and poised. When closely observed and under scrutiny they get their excitement from being able to fool those they are with. When things are smooth, however, they are likely to stir things up. Normal life is boring for them and stirring up trouble is a partial antidote.

Psychopaths are masters of impression management and can fool the greatest experts. They are very likeable and believable. While the average person may not be able to hide their distaste for someone, the psychopath has no problem acting and playing the game that is required to get what he wants. Their lack of respect for the truth facilitates glibness and an ability to make flattering statements and self-serving lies convincingly. Their emotions are very shallow. Able to focus on the presentation they wish to give, unburdened by anxiety or guilt or a need for a real connection with people, they come across as class acts and are charismatic. The psychopath noted above not only succeeded in sleeping with both of his stepdaughters, but remained in the family when his actions were discovered and continued to be embraced by all concerned. A particularly powerful experience for me was interviewing a man who had allegedly killed several people in cold blood. The reports were that he had responded with marked vengeance to small slights. When we met he was not only charming and poised with me, but reportedly was very well behaved in jail. I found it almost impossible to imagine him engaging in vengeful killings over tiny issues. Their ability to be charming and fool people, to be a wolf in sheep’s clothing, makes them very dangerous.

If caught in lies and unmasked they will become very upset and may panic. Their emotional distress does not arise from guilt or shame but from fear that they will no longer be able to continue the complex game they are playing, and that their power and success may come crashing down. Their outbursts at these times may also be calculated and strategic. There is the old adage that when the facts are against you plead the law, if the law is against you pound on the table. The unusual show of emotion by someone who is generally under good control can shock people and effectively lead them to back away from their accusations.

          Psychopaths have a remarkable lack of respect for the truth. Words are not tools of communication and connecting with another person. They are tools to obtain what one wishes. Psychopaths are not concerned that lying destroys the fabric of a relationship, since they do not forge the mutual bonds of responsibility and commitment that are the essence of friendships. Psychopaths will say what is convenient, whether or not it is true, without hesitation. Unfortunately, they are also very believable since they lack the anxiety and hesitation most people evidence when lying.

         Psychopaths externalize all blame with amazing facility. A classic maneuver is to accuse their victim of doing what they themselves have been doing. They accuse their spouse of being harsh with the children, screaming and never being available, when it is in fact they who were doing these things. They come up with endless excuses for their actions. If you carefully track their logic you will find multiple contradictions. People rarely, however, have the inclination to carefully track them. Even if one does, the psychopath will claim that the situations are different and find a reason to excuse their own behavior and externalize blame.

Psychopaths do tremendous harm to those unfortunate enough to become close to them. They are drawn toward insecure and trusting people like bees to sweet smelling flowers. They play on their insecurities and hopes, tuning in to how to manipulate them with amazing skill. As their victims try to protest about how they are treated the psychopath skillfully convinces them that they are being unfair in their criticisms and it is really they who are being unfairly treated. In time the person’s self esteem falls lower and lower making it harder to escape. The result on others is to create immense confusion and rip at the fabric of the self esteem of those they are close to. The massive disconnect between espoused values and actual behavior leaves those they are close to questioning their perceptions of reality. These psychopaths are adept at painting those they hurt as the culprits and themselves as the victims. They are so charming and persuasive that they frequently succeed in turning others against their victims. Dr. Hare goes on to note that they often contradict themselves, but people tend not to notice or care. Their facility with words is excellent.

Etiology

        Core element of psychopathy appears to be a diminished emotional experience including a lack of empathic connection to others, a failure to experience disgust when seeing human suffering and a decreased conditioned fear response impeding learning from experience.⁹

Research has shown altered neurobiology in psychopathic individuals.¹⁰ Twin studies show that callous-unemotional ways of relating to the world are heavily based on genetic factors. Moreover, anti social behavior in callous unemotional children is not mediated by environmental factors while anti social behavior in children who are not callous and unemotional are significantly affected by their environment.¹¹A lack of behavioral inhibition has been hypothesized to be connected to psychopathy.¹²

Individuals with high scores on tests of psychopathy show reduced learning from punishment, as is found in patients with orbitofrontal lesions.¹³ Non criminal psychopaths failed to develop conditioned responses when a foul odor and neutral faces were paired, while controls did develop a conditioned response indicating a problem in association formation.¹⁴

It has been hypothesized that problems in the amygdala and orbital/ventrolateral frontal cortex affects the individual’s learning from socialization experiences and increases frustration based aggression.¹⁵

Using multiple psychophysiologic measures to compare emotional responses to unpleasant and pleasant stimuli showed decreased electrodermal responsiveness, less facial expression, and the absence of affective startle modulation in psychopathic individuals as compared to offenders with borderline personality disorder and controls. Emotional hyporesponsiveness was specific to psychopaths, since results for offenders with BPD indicate a widely adequate processing of emotional stimuli.¹⁶

Research has indicated a tendency for psychopathic individuals to fail to attend to information that is not deliberately integrated with information they are paying attention to and that is not compatible with what they are trying to accomplish. This may explain the failure to respond to risks as most people would.¹⁷

Psychopathy Versus Other Psychiatric Disorders

Psychopathy can be seen as a combination of particular aspects of narcissistic and anti-social personality disorders. Narcissistic personality disorder entails a combination of grandiosity, the need for admiration and lack of empathy. The narcissism of psychopathy does not always include a need for admiration or grandiosity. Rather, the driving factor for psychopaths is a marked lack of empathy for others and willingness to callously sacrifice the well-being of others in pursuit of what they wish. Narcissistic individuals see themselves as demigods who do not have to follow the rules meant for mortals, whereas psychopathic individuals ignore the humanity, needs and rights of others. Narcissistic individuals seek to be idolized, whereas psychopathic individuals seek to dominate. Kernberg suggested that there is a continuum from narcissism to malignant narcissism to psychopathy.¹⁸

Some use the words psychopathy and sociopathy as synonyms. Others relate sociopathic behavior to anti social behavior and see the core of psychopathy the marked lack of empathy and ruthlessness in relationships and endeavors.

Importance in Forensic Work

           The concept of psychopathy is important in many areas of forensic work. All else being equal, an individual who meets the criteria for psychopathy is more likely to be violent than an individual who is not psychopathic. They are far more likely to engage in instrumental violence to achieve their objectives than non psychopaths are. Thrill seeking and sadism further add to their tendency to violence.

Their rates of recidivism are also higher, which has significant implications for parole decisions and letting people out of conditions for follow up after release. The recidivism rate for psychopathic individuals is high because they tend not to learn from negative experiences.

The issue of psychopathy is also very important in civil forensic issues. In custody battles, psychopathic individuals tend to present very well. They are charming and very likeable and you want to believe them. When faced with two parents giving discordant descriptions of the truth and fighting bitterly over the children there is a tendency for the court to feel a plague on both your houses. Moreover, there is also a tendency to see the calm and charming psychopath as the healthier parent and the frustrated, and frightened victim as emotionally unstable and to hand the children to the psychopath. Only an excellent forensic can avert this disaster for the children.

Identifying Psychopaths

Identifying psychopaths is difficult. Most of the time they present as either totally normal or as having high levels of virtue and mental health. They often present as agreeable and personable, genuine and well adjusted. They are often charming and poised. They present as having high levels of mental health and as being able to handle stressful situations well. They generally present thselves as warm and caring about others, if it suits their purposes. They may even speak about past mistakes in reasonable ways and about the risks involved in some paths of action. Robert Hare notes that they are so believable that they are generally able to convince people that the people they victimized are actually the culprits. Hervey Cleckley MD wrote an excellent book entitled the Mask of Sanity. He noted that psychopath lack the outward manifestations of mental illness (anxiety, depression, delusions, hallucinations, obsessions or compulsions, disorganized thinking) but then behave in ways that are inexplicable to reasonable people. Cleckley noted that psychopaths tend to act in accordance with social norms when under careful watch, but will then behave with abandon if he or she thinks she can get away with it. They are reminiscent of Potempkin Villages providing only the outward form of normality. Look under the surface and what you see is distressing. Their actions belie their words. Gather information from others and you will find a history of irritability, irresponsibility, recklessness and violation of the rights of others. There is a massive disconnect between their stated values and their actions.

The most crucial steps in identifying psychopaths is being alert to the possibility and aware of the presentation. When faced with someone who is charming and well-spoken, rather than being charmed you need to consider that the individual is a psychopath. Reviewing the person’s job and relationship history is likely to show a history of problems, instability, and externalization of all responsibility that is classic. Obtaining work assessments and papers from prior divorces can be very helpful in seeing if others have seen problems with anger and prevarication and instability. When asking about issues in relationships and in work, and about successes in work and their social life, you can see if they take all credit for themselves and externalize blame, or if they have a more shared way of dealing with credit and blame. Some psychopaths are sufficiently skilled to accept responsibility for mistakes. Their doing so, however, is not likely to include the appropriate emotional component. The words may be there but no sign of real feeling of having done wrong. They will not take real steps to make amends and will engage in the same hurtful behavior when convenient for them.

The psychopath will fail to show the normal levels of insecurity and self doubt that most people have, and which are expected to be particularly prominent in a forensic evaluation. There will be little sign of remorse or guilt, except that which is rehearsed. Asking about times in their lives when they felt guilty or remorseful, particularly outside of the issue at hand, is likely to catch them off guard. They may learn to say the right things but there is a shallowness to their feelings. He will never show humiliation or regret although they may be able to claim that they realize they made a mistake and even that they wronged someone. You can also ask what the person did to make amends.

The next crucial step is to actively search for contradictions in what the person is reporting and for concrete information that contradicts what the person is saying. Information is often available. It may be about small things that do not seem crucial, nevertheless the issue that the person lied to you is crucial.

There is a tendency for psychopaths to engage in intense gazing and for their eyes to be expressionless, rather than the emotions appropriate to their words. This is certainly not diagnostic, but when you encounter someone behaving this way it should lead you to raise your antennae.

Psychopathy Check List- Revised (PCL-R)

Robert Hare Ph.D. is the preeminent researcher on psychopathy. His Psychopathy Check List- Revised (PCL-R) lists 20 criteria which are scored 0, 1, or 2. Most are divided into one of two categories: interpersonal/affective and social deviance.

Interpersonal Affective

1. Glibness, superficial charm 

2. Grandiose sense of self worth

3. Pathological lying

4. Conning/manipulative

5. Lack of remorse or guilt

6. Shallow affect

7. Callous/lack of empathy

8. Failure to accept responsibility for actions

9. Revocation of conditional release

Social Deviance

1. Need for stimulation, proneness to boredom
2. Parasitic lifestyle
3. Poor behavioral controls
4. Early behavioral problems
5. Lack of realistic, long term goals
6. Impulsivity
7. Irresponsibility
8. Juvenile delinquency

Additional items

1. Promiscuous sexual behavior

2. Many short term marital relationships

3. Criminal versatility

Offender populations typically have scores of 22 to 24 with a standard deviation of 6 to 8.

 Treatment

Many consider psychopaths to be untreatable.¹⁹ The same

factors that impeded their learning from their experiences and learning true socialization (lack of empathic attachment to others and limited conditioned responses) interfere with their benefiting from therapy. They may learn skills to be better at pursuing their historic self centered objectives and better at manipulating and fooling people, but they are unlikely to cease their risk taking and mistreatment of others.

Further Reading

• Cleckley, M.D., Hervey (1982). The Mask of Sanity (Revised ed.). Mosbey Medical Library. 

• Hare, Robert D. (1999). Without Conscience: The Disturbing World of the Psychopaths Among Us. New York: Guilford Press. 

• Hare, Robert D with Paul Babiak Snakes in Suits: When Psychopaths Go to Work (2006).

• Patrick, Christopher J. (2007). Handbook of Psychopathy. New York: Guilford Press. ISBN 1-59385-591-5. 

• Oakley, Barbara, Ph.D., Evil Genes: Why Rome Fell, Hitler Rose, Enron Failed, and My Sister Stole My Mother's Boyfriend. Prometheus Books, Amherst, NY, 2007.

• Hare RD, Neumann CS. Psychopathy as a clinical and empirical construct. Annu Rev Clin Psychol. 2008; 4:217-46.

• Lynam DR, Gudonis L. The development of psychopathy: Annu Rev Clin Psychol. 2005;1:381-407

• Hare R, Glass SJ, Newman JP. Current Perspectives on Psychopathy. Annu Rev Clin Psychol. 2006 Mar 6

• Hare RD.Psychopathy: a clinical and forensic overview. Psychiatr Clin North Am. 2006 Sep;29(3):709-24. Review.

• Theodore Millon, Erik Simonsen, Morten Birket-Smith, Roger D. Davis Psychopathy: antisocial, criminal, and violent behavior

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Parental Alienation Syndrome (a.k.a. Parental Alienation)

When Children Do Not Want Contact with a Parent

            When a child does not want to see a parent, and alleges mistreatment by that parent, the rejected parent often asserts that the child has been turned against them by the other parent. Many evaluators, law guardians and judges almost automatically disbelieve allegations of mistreatment of a child that occurs within the context of custody battles, stating that it is simply a matter of what Richard Gardner called “parental alienation
syndrome”. (Rand 1997 a, b; Warshak 2001). There certainly are many children who are placed under pressure by a parent to reject the other parent. However, badmouthing the other parent generally backfires, unless the other parent behaves in very problematic
ways. Research has failed to support the common practice of ignoring abuse allegations made within the context of a custody dispute. Accusations of abuse must always be taken seriously. (Thoennes 1990; Everson 1989; Association of Family and Conciliation Courts
Research Unit 1988).

             There are a number of factors that can make a child reluctant to visit the non-custodial parent. In high conflict divorces the transition between the parents can be difficult. When the child’s temperament does not match well with the parenting style of the non residential parent, or when the non residential parent is harsh or ignores the child on visits, a child will often not want to visit. A child may be reluctant to leave a residential parent whom they see as vulnerable and needing their support and presence. When the non residential parent has a new partner the child may not want to visit either because the step parent does not get along well with them or out of a sense of loyalty to the residential parent who is being replaced. When a child has a negative attitude toward a parent it is far more likely that the issue is estrangement as a result of that parent being harsh or unempathic, than the result of alienation.

            There are a variety of factors that can help the evaluator to differentiate between cases of abuse and parental alienation syndrome. If the alleged abuser is found to have a history of impulsive and aggressive behavior and to not cooperate with the evaluation, while the accusing parent supports evaluation and the maintenance of contact with the alleged abuser under safe circumstances it is likely that abuse, rather than alienation is occurring. On the other hand, if the abuse is alleged to have suddenly begun after separation, the accusing parent avoids evaluation and the accused parent has no history of impulsivity or aggression then alienation seems more likely. In addition, alienated child will appear to have been coached, and to often need reminders from the accusing parent in order to tell the story of the bad things that were done, while a truly abused child will need only a few reminders (Gardner 1999).

            Many children are abused by parents and need protection. Nevertheless, parents who allege abuse are not only frequently ignored, but if they continue to push the issue they are seen as manipulative and psychologically unstable. Those who have not done extensive work with domestic violence, abuse and trauma do not realize that the anxiety
and pressure of these individuals is the normal response to being victimized and to having to stand by as one’s child is placed in the situation of being victimized. Parents find themselves in the painful position of being threatened with losing their child and handing them over to the abusing parent if they do not force their hysterical children to go to the abusive parent. These situations need extensive evaluation by people trained in evaluating abuse.

Further Reading

Kelly, J.B. & Johnston, J.R. (2001). The Alienated Child: A Reformulation of Parental Alienation Syndrome. Family Courts Review, 39 (3), 249-266.

Sullivan, M. & Kelly, J.B. (2001). Legal and psychological management of cases with an alienated child. Family Courts Review, 39 (3), 299-315.*

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CHILD CUSTODY EVALUATIONS

Introduction

Forty percent of children suffer their parents divorcing before they reach adult hood. (Glick 1988, 1990). In 10% of divorces litigation arises over issues of custody and visitation.

There are two issues which need to be decided in custody cases: (1) legal custody (decision making concerning education, activities, medical needs, religion) and (2) visitation (the allocation of time). For most of the 20th century the “tender years doctrine”, prevailed and children were believed to be better off in the gentle hands of the mother, rather than in the coarse hands of the father. In the 1960s and 1970s fathers received greater equality, but there continues to be a general pro mother bias when the parents are not in agreement. Research has shown that children better off being with the warm, supportive, nurturing parent. Not all mothers are more nurturing than all fathers, however. Children are better off being with the available parent than with babysitters. Mothers generally are more available, but not always. When one are dealing with a specific family one should ignore the fact that most mothers are more available than most fathers and that mothers generally have more experience with children and look at what is happening in the particular family you are dealing with.

Several decades ago Solnit, Freud and Goldstein argued that it was important for a child to have the stability of having a single parent making all decisions. The theory is that it brings greater security to the child for decisions to be made efficiently.

In recent years joint custody has become common. In fact, the custody experts at the Yale Child Study Center, where Solnit and Goldstein worked, are particularly strong in believing that both parents should be heavily involved and that the non custodial parent should have a right of first refusal to be with the child whenever the custodial parent is not available. Joint custody is more likely to work when the parents maintain respect for each other as parents, understand that a child needs both parents to be involved in his or her life, and neither parent has oppositional personality traits and instinctively objects to what the other wants. If joint custody is not possible then responsivity to the input of the other parent should be a major factor in deciding who gets decision-making.

            The role of the psychiatrist in a custody dispute is generally to assess the strengths and weaknesses of each parent, assess the child’s needs, and provide this information to the court. The forensic psychiatrist needs to be the neutral scientific observer of the report, presenting evidence for and against his assessment of each parent’s strengths and weaknesses and their likely impact on the child. Forensic evaluators need to avoid becoming advocates for their ultimate opinion, avoid speculation, avoid cherry picking of data, and avoid the use of pet theories and personal preferences.

Unlike therapeutic interventions, the custody evaluation is not conducted with confidentiality. Rather the evaluator will be informing the court of the results of the assessment.

Impact of Divorce on Children

           Understanding the impact of divorce on children is important for all involved in custody battles. Many children have significant problems during the first year or two including sleep problems, sadness, anger, worry about themselves and their family and aggressive behavior. These problems tend to significantly abate by two years (Allison 1989). (see Joan Kelley in JAACAP)

           After separation children are stressed by the collapse of their nuclear family and home situation, change in routines and decreased access to friends, the need to transition between two houses and having no place that is really home, loss of family income, and their parents’ stress. The combination of angry, clingy and possibly oppositional children with parents whose emotional resources are stretched past the breaking point is problematic. Moreover, parents’ parenting skills often decline after divorce. Some research suggests that residential mothers tend to become controlling and or inconsistent while non residential fathers become more permissive (Hetherington 1982; 1993).

Conflict between parents is perhaps the most crucial factor in adjustment for children in divorcing families (Amato 1993, 1994). The intensity of conflict is more significant than the frequency of conflict. When children fight through the children, conflict is particularly problematic.

Young children are ego centric and have magical thinking. They tend to see themselves as the cause of many things that arose for other reasons. Hence, their tendency to blame themselves for the divorce and for how their parents are coping after the divorce. Those who do so are particularly likely to have emotional problems (Healy 1993).

Parents dating is also very stressful to children. At age 4 or 5 children often like the attention of a new parent, but they tend to be resentful around ages 8 or 9. The risk of sexual abuse of girls by stepfathers is a serious problem. People have estimated that perhaps 20% or more of stepfathers sexually abuse a daughter.

           Another important issue is that many children become parentified after a divorce and become emotional supports for their parents, listening to their problems, giving them advice and perhaps even acting as an intermediary between them. This is generally very destructive to the child’s development and can interfere with the individual being able to forge and maintain appropriate adult relationships in the future. Parentified children are frequently overwhelmed by the responsibility of supporting their parents or taking care of the house and slide into depression and want to avoid family responsibilities as adults. The burden of being parentified also interferes with opportunities to engage in age appropriate social experiences and to learn needed skills. These children may also be bossy with peers and associate with older individuals and risk being manipulated.

           Children often fear abandonment by their parents. Children of divorced parents are, on average, more aggressive, inattentive and socially unpopular than children who have not experienced divorce. They tend to have earlier sexual experiences and use more alcohol and drugs.

           Perhaps the biggest impact of divorce occurs when children grow up and seek their own relationships.They may lack an inner model for how adults stay together and work things out. They tend to see family and marital relationships as fragile. They can impulsively jump into relationships with people they do not know well, or have difficulty committing themselves (Wallerstein 2001).

Crucial Aspects of Child Development

           An understanding of various aspects of child development is crucial to designing placement and visitation arrangements that appropriately meet children’s needs after a divorce. First, the young child’s experience of time is different from that of an adult. Time seems to pass much more slowly for children. They cannot look back on having had many hundreds of weeks and dozens of holidays during their lifetime. Not only has their life span been shorter, but they cannot remember their preverbal experiences. What may seem like a few days to us can seem like an eternity to them. Young children also have limited sense of object constancy and object permanence. Separations are therefore much more stressful. A child’s experience of time needs to be a central factor in designing visitation schedules, particularly overnight and vacation visitation. (Goldstein, Freud, Solnit 1979)

           While the preschooler’s life centers overwhelmingly on the home, for school age and adolescent children ties to the community and friends become increasingly important. The child’s ability to have the normal developmental experiences of childhood, and to develop skills and interests is crucial. Visitation arrangements should attend to the child’s needs in these areas (Galatzer-Levy R 1993). For example, spending all of every weekend with the visitation parent in a place without friends is acceptable for a three year old, but is not for a school age child or adolescent. It would be both unusual and of great concern for any adolescent who spent each and every weekend hanging out with a parent rather than seeing friends, even if the parent were away on business for the week.

            The internalization of morals and development of a coherent identity are two critical developmental tasks of childhood and adolescence (Erickson 1956; Lubit 2003). The child’s developmental needs in these areas need to receive significant attention in custody decisions. If one parent is engaging in undesirable behaviors the key issue should be whether the child is impacted. For example, if a parent has multiple sexual partners or was unfaithful during the marriage, it does not necessarily hurt the child. What hurts the child is the child’s being exposed to it by seeing it or being told about it by either parent. It is important for children to have positive images of their parents to internalize. A parent who is filled with anger and says negative things to the child about the other parent will injure the child.

Amidst the turbulence of the divorce sources of security and stability outside of the relationship with the parents take on added importance in the child’s life. These include religion, ties to friends and adults in the community and their siblings. Maintaining these ties should be part of the custody decision.

Visitation Schedules

            The underlying principle that needs to be followed is that a child needs to have a supportive home situation providing security and the developmental supports and experiences needed to grow. Being constantly in transition between different homes is stressful. But, visits that are too far apart or too short in duration can turn the visiting parent into a visitor rather than a parent with destructive impacts on the child. Regularity of visits is particularly important (Issacs 1988). Children need as much contact as possible with each parent and with other important relatives such as grandparents. Children also need time with friends.

Research has increasingly shown that relatively equal divisions of time are best for the children, assuming that both parents are good parents. Research has shown that children’s school performance tends to be better when children and parents share work and play. Children sometimes alternate weeks between parents. For young children this is too much time apart from each parent. Another equal schedule involves alternating weekends and the children being with one parent on Monday and Tuesday and the other parent on Wednesday and Thursday. I believe this is superior to one night a week since there is less transitioning. Research has shown that an overnight a week is superior to no overnights a week.

Another common plan is for the visitation parent to have one or two dinners a week with the children. While fine for young children, this becomes problematic as children grow older and have lots of homework and school activities. Another common plan is that one parent has primary placement when school is on (10 of 14 days) and the other parent has the child during most vacation time.

Infants need very frequent visits, i.e., several times a week. Visits should last a couple of hours and should allow the non custodial parent to engage in various aspects of care-taking of the child. Many are hesitant to have children under three go for more than one night without seeing the primary custodial parent. Children should have phone calls, photographs of the parent they are not with and transitional objects available.

             For adolescents, who are generally separating from their parents and highly invested in friends, maintaining their ability to see friends is important. Weekend visits should not involve pulling them away from normal activities. If a child is spending the summer with the non custodial parent there should be daily phone calls and visitation if possible.

            It is important for siblings to stay together, but it is also important for children to receive individual attention. Siblings provide each other with a sense of continuity, security, support and continuing relationship. To rob them of this support at any time, but particularly in the midst of the parents splitting up, would be very destructive. Moreover, this is a relationship that will hopefully last their entire lives. The children should have every opportunity to maintain it. Separating children also denies them the opportunity to learn socialization and sharing skills. Splitting children so that each parent can have one child turns children into property rather than focusing on what is best for them. Visitation, however, does not have to be simultaneous for all of the children. In fact, children are very much in need of one-on-one time and so it is best if the parents sometimes split up the children. Particularly during weekends it is helpful if the parent to whom the children are not assigned for that weekend can spend some time with one of the children.

Visitation with a parent who is seriously inappropriate, mentally ill, abusive should be supervised. If the behavior cannot be contained even with supervision then visitation may need to be delayed until the person is in better control.

            Many lawyers feel that children need one primary home base and therefore equal splits of time are not good. If children are dividing their time equally then they will have two homes. If they divide their time unequally they will then be in a place that is not home much of the time. Making one home dominant creates more problems than it solves.

Many lawyers feel that if the parents do not get along that one parent should dominate. Letting one parent dominate, however, is likely to enrage the parent who loses and, once again, is likely to create more problems than it solves. The key issue is for the parents to get along and to not present the children with a situation in which they love two people that hate each other. Allowing the custodial parent to place the children with babysitters and keep a fit parent from having access for much of the week, insisting that all the children be with you at once and preventing the other parent from giving the children one on one time is a recipe to stir tensions and inevitably hurts the children. Which parent is open to giving the other parent a right of first refusal and allowing the other parent to visit very liberally should be a crucial factor. In addition to it decreasing tensions, the parent who wishes to push the other parent aside is demonstrating very concerning personality traits that are likely to affect parent-child interactions.

It is generally considered a key role of the custodial parent to support the relationship between the children and the non custodial parent. From a psychological perspective, children need two parents and need to feel connected to both parents at all times. Children should not feel cut off from one of their parents for much of the week. Therefore, a very important factor in deciding custody should be which parent is willing to let the other parent visit the children even when the children are not assigned to that parent. Availability to be with the children, empathy and warmth, setting reasonable limits, and attachment are the key factors that should govern who is the better parent for these children.

Decision-Making

            When parents can work together, joint custody has the significant advantage of keeping both parents actively involved in the child’s life. For joint custody to work, however, the parents need to be able to communicate and cooperate. Geographical proximity is also important. Judges tend to opt for sole custody if the parents cannot work together, there was domestic violence, one of the parents is a substance abuser, or has serious emotional problems or abused a child.

            There are other alternatives, however. Spheres of influence can be divided between the parents. The four spheres generally discussed are decisions about education, medical needs, activities, and religion. Another alternative is for there to be a parent coordinator who acts as the tie breaker if the parents cannot agree.

There are serious problems with one parent having total custody. The hope of obtaining full custody fosters custody battles. If parents knew that joint custody was the likely conclusion of the court there would be much less reason to fight. Another problem is that the disenfranchised parent inevitably feels marked resentment and anger leading to a heightening of tensions between the parents, which is the worst thing for the children. A third problem is that it denies the children the benefit of both parents’ input. In general, two heads are generally better than one. Even more serious, it often creates a situation in which the parent who wins makes choices (at least on an unconscious level) not on the child’s best interests, but on what will irritate the non custodial parent the most.

The problems created by joint custody are generally less than the problems of disenfranchising one of the parents. Solnit and Goldstein, several decades ago, noted concern that decisions would be delayed creating insecurity for the child. Decisions about schools and medical care are relatively rare. Children do not change schools every week, or every year. They do not change doctors every week or year. Medical recommendations come from doctors. Each parent should be free to get a child evaluated for problems, unless the parent has been shown to do so inappropriately in a way that is clearly harmful to the child. In terms of treatment, if one of the parents does not want to go along with the doctor’s recommendation and the other does it is best that the child has two parents giving input and forcing the issue before an arbitrator, rather than perhaps only the parent who did not want treatment. Decision-making concerning activities happen more often. If the parents can’t agree they can alternate years or divide the decision-making concerning camps versus activities during the school year, or they can go to an arbitrator, or if need be to court with an issue that is far less contentious and complex than who should get sole custody. If there is a special activity that one parent feels the child should pursue year after year and the other parent blocks it on his years then the parties can always then go to court to deal with the issue. Generally, this will not occur. The attempt to avoid this by giving all power to one parent causes more problems than it solves by disenfranchising one parent, stirring anger that increases tension between the parents (which is the worst thing for the child), or leading the non custodial parent to withdraw (also a serious problem), and denies the children the input of one of their parents.

Things for the Forensic Evaluator to Assess

Decisions about the best parenting situation should not be based on stereotypes of parental roles and gender based traits. Nor should it be based on pet theories about good parenting styles. Rather, it should be based on the ability of these parents to relate to the child’s specific needs and temperament. Good parenting for a child with one temperament and set of needs is not optimal for a child with a different temperament and set of emotional needs (Leventhal IBID).

Mrazek identified five “key dimensions of parenting”. They are emotional availability (warmth), type of control (flexibility and permission), psychiatric health versus disturbance (including personality disorders), knowledge base (understanding of parenting role and how it changes over the course of development), and commitment (Mrazek 1995).

Authoritative parents (ones who emphasize encouragement, support for efforts initiated by the child, clear communication and a focus on the child’s needs) are preferable to authoritarian ones (Collins 1995). Research has also shown that child centered discipline, in which general acceptance of the child is communicated and disciplinary measures are modified based on the child’s response, is best at leading to the development of internal controls and values (Collins 1995; Maccoby 1984). Inconsistent harsh parenting can lead to oppositional and conduct problems (Lubit 2003 b). Antisocial behavior can also arise from ineffective monitoring (Tolan 1993, Lamborn 1991).

As they grow, children increasingly need to be involved in making decisions about their lives, and not simply subject to parental dictates, if they are to develop their own good judgment and self control and confidence. Invasive parents that make all decisions, particularly during adolescence, interfere with the child’s ability to become independent and competent to run their own lives. At the same time, the parent needs to protect the child from disastrous decisions. The trick is in knowing when to allow a child to make the decision with support and when to step in and say no. Some parents are not able to separate decisions that have dangerous or long term serious destructive impact from one’s with very limited risk and cost. Parents also need to be able to maintain a warm supportive stance with children who are rebelling against them. Parents need to have an understanding of the different phases of development and the emotional health and flexibility to be able to change their behavior to meet their child’s changing needs.

Key issues forensic evaluators need to address include attachment of the child to each parent, each parent’s understanding of the child’s developmental needs now and in the future, ability to appropriately respond to the child’s needs, ability and willingness to put the child’s needs first, temperamental fit of child and parent, which parent the child is better able to talk to get support and advice, ability to help with school work, ability to foster the child’s curiosity and intellectual growth, ability to listen to the child and validate the child’s feels and thereby foster emotional growth, ability to respond to other needs the child has, availability and intention to be a direct caretaker, caretaking arrangements when the parent cannot personally take care of the child, emotional health issues that affect parenting, how good a role model the person is, any behaviors that are detrimental to the child, medical judgment, and respect for and willingness to support the child’s relationship with the other parent.

In general, parents alternate weekends and one parent dominates the week. The real question then is not which parent is a better parent overall, and it is certainly not which parent is better on weekends, but which parent is better during the school week. Having read innumerable forensic reports, I have never seen a report which attends to this issue.

            All of these are not of equal importance with each other. Moreover, their importance varies across cases. Warmth, patience and availability are particularly important after divorce. The fit between a parent’s parenting style and the child’s temperament is particularly important, and often not attended to. Some children are easy going and can deal with almost any parent. Children with strong wills and a tendency to be oppositional do disastrously with authoritarian parents. Is it not enough for an evaluator to say that a particular parenting style is better than another, it is important to say that it is very important, or a little important or not of any significant importance for a particular child.

All else being equal, if one parent encourages the children to be with friends on the weekends and takes the children to museums and interesting places while the other sits at home with the children and does little, the first is a significantly better parent. However, since parents almost always alternate weekends these issues are not relevant. In fact, giving the first parent predominant custody, and then balancing by giving the second parent more time over the summer or more vacation time, would backfire.

In terms of dividing time, unless weekends are not going to be divided equally, the key issue is to assess who is the better parent during the week. Key issues for during the week are not who is better being outside with the children. The key issue during the week is who is available to personally take care of the children, who is warmer and more patient, who is better at helping with homework, who is the child more attached to and therefore has a greater need for seeing on a daily basis, who is more organized and better at getting the child to school with all work done, who prepares healthier meals, who provides a better living environment in terms of opportunities for play and doing school work, which parent is more flexible in terms of letting the other parent come during the week so that the children can receive individual attention either with work or with being chauffeured to play dates and activities.

 Common Mistakes Forensic Evaluators Make

Forensic evaluators (like all human beings) are vulnerable to the impact of implicit assumptions and unconscious bias. Rather than objectively and fairly evaluating evidence, the assessment of the meaning and credibility of information is greatly affected by preexisting beliefs about men versus women as parents, whether allegations of mistreatment are generally true or false, and by the forensic evaluator’s comfort with each parent and initial impression of each parent.

It is very important for the well-being of the children for the forensic evaluator to do all he or she can to present information as fairly as possible, to explain in detail the basis for a negative statement about a parent. It is also crucial that the evaluator avoid speculation, avoid pet theories, avoid giving great significance to small issues, look for information that would challenge the criticism, and give the parent being criticized an opportunity to explain and defend himself.

Forensic evaluators need to function as the neutral scientific observer of the court, and not as advocates for their ultimate opinions. All too often forensic evaluators become advocates for their own opinion cherry picking data, making negative speculative comments about one parent and ignoring the weaknesses of the other parent. This denies the court a fair opportunity to weigh the data. Moreover, much of the information the forensic evaluator has is hearsay and is actually not even admissible in court and should not be part of the judicial decision-making process. Therefore, forensic evaluators should present all relevant data and be modest and cautious in making statements about the parents.

It is the forensic evaluator’s responsibility to gather all relevant data, and to elucidate and explain the relative strengths and weaknesses of both parents. While some judges want the forensic evaluator to make specific recommendations on custody and visitation, others do not. It is crucial to know what the judge has ordered you to evaluate and what the judge wishes you to opine on. It is also very important to explain your reasons for rendering specific opinions.

Opinions should only be provided when they are very solidly founded. Speculation and pet theories, which are commonly expressed in clinical work, should be avoided in forensic work. Clinicians are trained to spin out hypotheses based on the data available and to use them until the data points in another direction. This may be adequate for clinical work but it is not adequate for forensic work since semi permanent decisions will be based on the evaluator’s opinion. In 1993 the US Supreme Court ruled that scientific evidence, and not simply generally accepted practice, was the rule for expert testimony in federal courts (Daubert v. Merrill Dow).

            In doing evaluations psychiatrist and psychologists should utilize the standard social science methodology of creating competing hypotheses and then actively looking for information that supports or contradicts each hypothesis. One method of gathering such information is presenting the parties with each allegation against them so that they can bring up information to challenge it. Another is to seek information from teachers, school records, doctors, medical records, collateral sources, and most of all the children to evaluate what the truth is. For example, parents frequently provide contradictory reports on how active each was in the various areas of the children’s lives. Rather than simply noting the contradiction or assuming one is more accurate than the other based on observation of their demeanor, you should call the schools and doctors and after school activities and see which parent was more active. Also, you should ask the children. Another common allegation is that one of the parents was harsh. The children are an excellent source of information to evaluate this allegation.

          Another issue is that forensic evaluators and courts generally pay little attention to the issue of potential growth. Some issues and parents are likely to improve in time while others are not. It is important to look at flexibility, openness to advice, the ability of this parent to make improvements in the issue of concern and the impact of this issue on the children in the future (not in the past). Personality issues that are particularly problematic include rigidity, self-centeredness, limited empathy, a tendency to externalize blame and problems with anger. Anxiety problems may or not affect the children. How well the person contains the anxiety versus showing it to the children, the children’s temperament and response to the anxiety, and the parent’s willingness to undergo treatment are all key factors in assessing whether a parent being anxious should mean a lot, a little, or nothing at all in an evaluation.

A common error, for both forensic evaluators and those who read their reports, is to assume that if a person fulfills diagnostic criteria for a certain problem that they have all of the problems associated with that disorder and that the problems will inevitably affect all spheres of their life. This is not true. Compulsive traits can be helpful in parenting if they are focused on doing a good job in evaluating schools and camps and planning a child friendly vacation and home. Compulsive traits are a problem if the parent cannot deal with the child making a mess in the house and becomes markedly tense if everything is not in its perfect place or if plans get undone by a child’s needs. A happy go lucky, overly relaxed parent who assumes all will be fine and puts too little attention into safety issues at home and selection of schools and activities is more likely to be a problem than a parent who is a bit too worried. In general forensic evaluators should not be concerned about such issues unless the parent is well outside of standard parenting practices. Unfortunately I have often seen forensic evaluators make a big deal of particular traits whose impact on the children is totally unclear. Such speculation and use of pet theories is inappropriate.

 Problems in the System

There are so many factors that need to be weighed, such great lack of clarity concerning how the parents relate to the children when no one is looking, and so much room for reasonable disagreement about what is in a child’s best interests, that in all but a few cases one can build an argument for either parent having custody. In such situations of great uncertainty, unconscious biases, initial impressions, pet theories and personal preferences have free reign to take over the decision making process, and often do.

An additional problem is that key safeguards used in criminal trials to help bring out the truth, do not exist in family court. While in criminal cases jurors are screened for bias, and are protected from hearing potentially biasing information, these protections do not exist in family court. Judges are not screened for bias and see information no juror would ever be allowed to see, including a great deal of hearsay presented in the forensic report. Even if the judge did not see the report, the judge is greatly affected by the opinions of the forensic evaluator and law guardian. The forensic evaluator’s opinion, and his subsequent interpretation of other information that comes to his attention, are affected by hearsay information he comes across. Even if the judge never saw the hearsay, the forensic evaluator was affected by it and his subsequent vetting and interpretation of information is deeply affected by his exposure to hearsay. Moreover, the law guardian often forges and presents her opinion long before evidence is presented and weighed at trial. In some states the law guardian is supposed to take a position before trial. Doing so tilts the scales of justice, interfering with the judge’s ability to weigh the evidence. The law guardian generally sticks with her initial impression, vetting and interpreting new data to fit the established picture. Judges often give great weight to the law guardian’s opinion, believing they know what is going on, ignoring the fact the law guardian’s opinion was created before the evidence was weighed at trial and therefore is as likely to mislead the judge as to inform the judge.

Solutions for avoiding these are difficult. At the least people need to be aware of the risk and do all they can to avoid it by being conscious of it, ignoring small differences between parents, looking for evidence that would show that their initial impression is wrong, consulting on cases with others who were not previously involved and asking to be challenged, rather than confirmed on impressions, rejecting speculation and pet theories.

Bibliography and Recommended Readings

 Joan Kelley has written various excellent pieces

 Ackerman M 2001 Clinicians Guide to Child Custody Evaluations. NY: John Wiley and Sons.

Amato P 1993 Children’s adjustment to divorce: Theories, hypotheses, and empirical support. Journal of Marriage and the Family 55, 23-38;

American Academy of Child and Adolescent Psychiatry (1997), Practice parameters for child custody evaluation. J Am Acad Child Adolesc Psychiatry 36(10suppl)

Galatzer-Levy R, Kraus L The Scientific Basis of Child Custody Decisions. 1999 John Wiley and Sons.

 Lamb, M. E. & Kelly, J. B. (in press). Improving the quality of parent-child contact in separating families with infants and young children: Empirical research foundations. In R. M. Galazter-Levy, J. Kraus, & J. Galatzer-Levy, The scientific basis of child custody decisions. Hoboken, NJ: Wiley.

Sattler J 1997 Clinical and forensic interviewing of children and families. San Diego:

Daniel W. Shuman, What Should We Permit Mental Health Professionals to Say About “The Best Interests of the Child”?: An Essay on Common Sense, Daubert, and the Rules of Evidence, 31 Fam. L.Q. 551, 554 (1997).

Wallerstein J Blakeslee S, Lewis J The Unexpected Legacy of Divorce: The 25 Year Landmark Study. Hyperion. 2001

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