Recently, I received an email asking about the significance of an actual personality disorder
diagnosis in a divorce or custody case:
How helpful are psych evaluations in custody and
divorce cases? Does it matter if you can get a personality disorder
diagnosis, or is it ultimately irrelevant—unless it’s accompanied by
severe acting out (e.g., hitting the kids, drugs, arrests, suicide
attempts, etc.)?
The short answer to the question is:
It depends, but with or without a diagnosis, it is critical that the Judge be informed of the disordered behaviors in detail.
Divorce
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| Dr. Tara Palmatier |
1. No-fault divorce. The
disordered behaviors are typically much more relevant in the context of
a child custody case, as opposed to a divorce without minor children.
Although jurisdictions vary in terms of the grounds for divorce and the
extent to which “fault” influences a property division, the trend is
towards “no-fault” divorce, which translates roughly to an equal
division of property as a starting point. Most, if not all, people who
are in the middle of a divorce could make a long list of their spouse’s
faults and deficiencies. Presumably, there’s been some bad behavior on
all sides. Judges know this and they have heard it all. Therefore, most
judges, in my experience, tend not to be too persuaded by tales of
misbehavior when it comes time to divide property.
There are exceptions, however.
2. Impact on marital property division. If
there has been a pattern of severe physical abuse, that is a
circumstance that could influence the Judge to award a disproportionate
share of property to the victim spouse. This happens very rarely as far
as I have seen.
If one spouse has been a serial cheater the whole marriage while the
other spouse made a lot of sacrifices for the marriage, that could also
affect a property division. If one spouse squandered marital property or
ran up an unreasonable amount of debt because of a gambling habit . . .
you get the idea. Really bad behaviors towards one’s spouse could give a
judge a reason to give a disproportionate award of marital property,
but this is not common, at least in the jurisdiction in which I
practice.
Child Custody Determinations
1. Cluster B behaviors are relevant. In a custody
battle, abusive Cluster B behaviors are very relevant to the decision of
which parent should be the children’s primary caretaker. Up until very
recently, custody was nearly almost always automatically awarded to the
mother, irrespective of her behavior. Overall, there is still a bias in
favor of mothers, but it’s not as automatic as it once was.
In my practice, I see a fairly even split between mothers and fathers
being awarded primary custody. While there are many other factors that
influence a custody determination, including the age of the child, the
child’s preference, special needs, parents’ work schedules, flexibility,
and a parent’s willingness and ability to work jointly with the other
parent, the determining factor typically comes down to the bad behaviors
of the parents.
2. Proving your case (with or without a psychological evaluation).
If your children’s mother has a variety of Cluster B traits, then there
is likely plenty of bad behavior that you’ll want to make known to the
Judge. The problem is, evidence of bad Cluster B behavior is too often
left to a He-Said-She-Said presentation in court. That simply won’t
work!
If your kids’ mother exhibits Cluster B behaviors, you
absolutely must document
them as they happen, save every email and text message, record phone
conversations, if that is legal in your jurisdiction (check your laws or
speak with an attorney), and always have another person with you when
you have to interact with her face to face so you can call that person
as a witness to testify about outrageous behaviors witnessed.
3. Psychological evaluations: a double-edged sword.
Aside from documenting, recording, and having witnesses to your
interactions, you may wonder also if a psychological examination is your
key to proving what a crazy ***** your wife/ex-wife is. If her
psychological functioning is an issue in a custody battle, you can
almost certainly have a psychological evaluation ordered by he court
(you will probably also have to submit to one).
Psychological evaluations can be a double-edged sword. First and
foremost, I would caution you guys that you should never expect an
outright diagnosis of a personality disorder from a court ordered
psychological evaluation. Very, very rarely is a diagnosis of PD given
as the result of a court-ordered psychological evaluation.
This may be because the criteria for the diagnosis are not very well
defined, and there’s also an unstated presumption that people are always
a little crazy when they’re involved in that kind of litigation.
Additionally, there seems to be a pretty pervasive reluctance for
professionals to use those labels even when they’re warranted. More
typically, the evaluator might say that someone exhibits borderline
“traits” or narcissistic “traits,” if they even go that far.
I
f you are relying on a psychological evaluation to prove your ex is “crazy,” you’re likely setting yourself up for defeat. Without
solid proof of the bad behaviors, the psychological evaluation could
actually hurt your case. If you have an evaluator who either doesn’t
find a personality disorder or is reluctant to label it as such for the
reasons discussed above, then you end up with a psychological evaluation
that seemingly portrays your crazy ex as mentally and behaviorally
stable and healthy. There goes your whole case.
Even if a psychologist does give an actual diagnosis of a personality
disorder, in and of itself that is pretty meaningless to a Judge. You
are going to have to tie the diagnosis to the particular conduct that
has caused problems and you’ll need to have your own expert to testify
that the history of these behaviors reliably predicts that the behaviors
will continue into the future, thus putting your kids at risk if they
are left in her primary care.
4. Paint a complete picture for the Judge. The fact
is, the diagnosis is not really important. It’s the behaviors themselves
that are important. The behaviors do not have to be as extreme as
hitting the kids or severe neglect in order for a Judge to be
influenced. If a stable and pervasive pattern of the bad behaviors is
proven, that’s what matters and that’s what will make an impression on
the Judge, even if the individual behaviors are not that significant on
their own. The reason it’s important to have a psych expert at trial is
not so much to interpret or reveal test results, but to put this
pattern of bad behavior in context and give a professional opinion about
the effect it will have on the kids.
Consider this example: If you have a mother who forgets to pick up
her kids from school fairly regularly and the school has to call Dad to
come get them; and Mom sends the kids to school without lunches and with
dirty or ill-fitting clothes; and Mom can’t get them to school on time
pretty regularly; and doesn’t go to their football games or dance
recitals; and breaks promises and leaves the kids disappointed; and
refuses to allow any flexibility in scheduling Dad’s time with kids; and
talks bad about Dad to the kids; and “forgets” to tell Dad about doctor
appointments; and leaves kids at home while she goes out drinking; and
moves three times in one year; and refuses to get a job; and doesn’t
monitor homework or make sure the kids are prepared for school; and
introduces the kids to a new “serious” boyfriend every other week
(allowing the kids to get attached to someone they’ll never see again
after week 3); and so on and so forth.
Any of these behaviors in isolation may not be enough to persuade a
judge to change custody, but when you add them together, you get a whole
way of behaving across the spectrum that’s harmful to the kids. Whether
you call it “irresponsibility” or “borderline personality disorder,” an
expert will be able to describe the predictable effect these behaviors
will have on the child’s emotional development if it is allowed to
continue.
Personality Disorder Diagnoses in Family and Divorce Court: Pros and Cons
A Judge will recognize the pattern as one of instability, which equates to harm for the child.
Check Yourself
A word of caution about psychological evaluations: if the Judge orders
her to undergo an evaluation, he will more than likely order
you
to undergo an evaluation as well. No problem, you say? Think again.
If you have been terrorized by an abusive wife for years, it
has
affected you. You have had to develop some kind of coping strategy just
to get by; your thinking has likely become distorted; and you may have
lost perspective about what “normal” really is. Maybe you’ve even
developed a complex stress disorder as a consequence of the hell you’ve
lived through—it’s not uncommon. You’re getting healthier now, but it
takes time to recover from repeated trauma.
There’s no telling how this may reflect in a standardized
psychological battery of tests, but the standardized test won’t tell the
real tale or apportion responsibility and it won’t tell the judge that
your psychological functioning is understandable and even predictable in
view of the extreme treatment you’ve been subjected to. In this
manner, court-ordered psych evaluations for both parents might be more
harmful to your case.
In addition, “normal” people do not react well to the stress of
ongoing litigation. Sometimes the litigation compounds or even causes a
PTSD-like response. But HCP’s enjoy and thrive on the conflict — while
you’re crumbling, your ex is in her element and cool as a cucumber.
These unfortunate realities could very well reflect poorly on you and
favorably on your crazy ex on a standardized psychological test.
For these reasons, you should be very cautious and deliberate about a request that the Judge order psych evaluations.
Bottom Line
1. A diagnosed personality disorder will likely have little or no impact on a divorce without minor children.
2. In child custody litigation, Cluster B behaviors are relevant and
must be proven with evidence supporting your testimony (e.g., journals,
recordings, emails, phone logs, text messages, other witnesses, etc.)
3. Psychological evaluations are risky and could end up hurting your case.
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