Therapeutic Jurisprudence: How Judges, Lawyers and Mental Health Professionals Can Be Agents of Change

Abstract

The goal of therapeutic jurisprudence is to mitigate the toll that prolonged litigation wreaks on families and children.

Full text

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COMMENTARY
Therapeutic Jurisprudence: How Judges,
Lawyers and Mental Health Professionals
Can Be Agents of Change
Elisa Reiter and Daniel Pollack | September 14, 2023
What is therapeutic jurisprudence, and how might family law judges implement
therapeutic jurisprudence to serve the best interests of children and their families?
Therapeutic jurisprudence (“TJ”) originated in the context of mental health law.
While mental health law should focus on helping people, parts of mental health
law can be detrimental in practice. David Wexler is considered one of the founders
of TJ. Simply stated, “[t]herapeutic jurisprudence explores how insights from other
fields—such as psychiatry, psychology, criminology, and social work—are useful

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to the law and how they can simultaneously be consistent with the due process
framework.” In addition, TJ
…introduces a new perspective in the examination and assessment of the
outcomes of laws and judicial decisions and the effect of these on the mental
health of individuals involved in the legal process: offenders, victims,
plaintiffs, and respondents as well as mental health and legal professionals.
The basic assumption of TJ is that the law, as applied, can have both therapeutic
outcomes, which should be encouraged, and antitherapeutic ones, which should be
minimized. For Wexler, the courtroom and social services should be intertwined.
He identifies five areas of growth and change in the area of TJ:
1. Moving TJ into legal (and other) education.
2. Implementing TJ internationally.
3. Advancing TJ as an interdisciplinary venture, taking a team approach.
4. Crossing boundaries, by taking TJ from mental health law to the entire
panoply of law.
5. Taking TJ from a theoretical concept to actual practice.
Retired Judge Philip Marcus, who was appointed a Judge of the Jerusalem
Magistrates Court in 1995 and served as a Judge of the Family Court from its
opening in 1997, contends that TJ can be used by family court judges as a means of
triage for families in trouble. For five years Judge Marcus served as Deputy
President for Family Matters for the Jerusalem District in Israel (Chief Judge of the
Family Court). He categorizes three different groups of judges, each of whom
should be enlightened on the powerful impact of TJ. Judge Marcus contends that

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different approaches might be necessary, depending on which category a given
judge falls in, to encourage the use of TJ:
· Judges who have experience and knowledge in family matters before
starting as judges, and who intend to continue dealing with family cases
for several years. These will usually have motivation to continue learning
so as to improve their handling of cases, so that the emphasis might be on
research on the effects of litigation on children and the need for diversion,
etc.
· Judges in large jurisdictions who are sent to family court as part of a
rotation for one or two years. These judges may have no experience with
family matters, and little or no motivation to learn, and may cause serious
damage if they treat family cases like any other case. They need to be
educated, preferably before, but at the latest soon after they start to hear
family cases, about child development, family conflict, personality
disorders, and how to conduct cases in the courtroom, etc.
· Judges in small jurisdictions who have to hear all kinds of cases,
including those involving children (child protection, juvenile crime and
family disputes), and will likely continue to do so for several years. They
also may have no prior experience, but their motivation to learn may be
higher. The content for this third category will be similar to that in the
second category.
TJ is especially important where there are allegations of familial dysfunction such
that a child may risk losing contact with one parent or another close relative, or a
case in which contact between the child and such a parent or other relative has
already ceased. Ad litem attorneys are also a part of the TJ process. Procedures are

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established by the court via TJ, with a respectful eye to assure both due process
and confidentiality for the litigants involved. The result of TJ? Faster and more
enduring resolution of family disputes, and placing litigants and their children in
the position of enjoying restored relationships. Like physicians, the mantra is first
to do no harm. Judge Marcus implemented TJ as a process in family court, using
the following principles:
1. The family court develops a team of social workers who assess each
family law case.
2. Rather than allowing the litigants to hire their own child custody
evaluators, the parties are instead provided with a list of trained evaluators
by the court. The list is composed of individuals with training and
experience assessing, treating and making domicile recommendations for
divorcing families.
3. The judge may implement effective and immediate decisions, assisted by
the family court’s social services team. As the team members are trained
in assessing cases involving allegations of domestic violence or other
endangerment, there is a focus on the protection of children from all types
of abuse, be it physical, sexual and/or emotional. This process is akin to
the process employed by a mental illness court that is dealing with a
psychiatric assessment and/or guardianship matters, where a trained court
investigator is part of the team approach to assess the needs of a potential
ward.
4. The teamwork of experienced judges working with trained professional
social work/psychologist teams allows high conflict families to have their
respective positions assessed immediately.

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5. If later legal disputes emerge, such as a modification, the family court
team reevaluates the family to assist the judge in making new rulings, if
such rulings are warranted.
6. Judges have the authority to assess sanctions against litigants, including
fines and imprisonment, against any parent or other litigant who does not
adhere to court orders. It is rare in the American system to have immediate
relief when one parent is cut off from access to child(ren) by the other
parent. That failure may be to the detriment of children, left in the care of a
parent whose bad behavior may not only continue, but whose bad behavior
appears to otherwise be rewarded by the court. When children remain with
a severely mentally unhealthy parent without therapeutic intervention, the
errant parent may inflict additional psychological and emotional damage
on their child(ren).
7. If the assessment team concludes that the behavior between divorcing
parents and their children indicates a history of destructive behavior that
will suggest the need for counseling, the liaison team outlines
recommendations for referral to an expert, and helps define the matters to
be dealt with. This assessment and referral system is categorized as
jurisprudential therapy.
8. If the assessment team concludes that there is indicia of domestic violence
or other dysfunction in the family relationship, appropriate
recommendations are made by the social services team, and codified by
the judge.
9. Collaboration between judges and their social services team is essential.
Consultations should occur between the judge and their team as needed. A
judge’s referral to the social services team should include a statement of
the parameters of what the team is to evaluate, to consult with the family

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about, and to assure that the social services team will outline initial
treatment recommendations as part of the assessment. The team may draw
issues to the judge’s attention, based on the teams’ interviews with family
members.
Dallas County, Texas District Attorney John Cruezot, while serving on the bench
in Dallas County, developed a TJ program. In addition, the Judge John Cruezot
Judicial Treatment Center in Wilmer, Texas offers both inpatient and outpatient
services to those in need. The Hon. John Roach developed a TJ approach focusing
on veterans in Collin County, Texas. TJ is also employed by the Legacy Family
Court Foundation in Dallas, in conjunction with Judge Sandra Jackson, Judge
Vonda Bailey, Assoc. Judge Delia Gonzales, Assoc. Judge Tamika Jones
Abendroth, and Assoc. Judge Jean Lee, following a liaison initiated by the Hon.
Frances Harris, and furthered by the Hon. Tena Callahan, working with Family
Compass (then Child Abuse Prevention Center). Such programs are now found
worldwide.
What are the objectives in these TJ forums? Judge Marcus focuses on three types
of courts in encouraging the holistic approach that TJ provides within the legal
system:
1. For criminal courts, a key objective is to avoid recidivism, to reduce costs to
the community, and to keep families intact.
2. For civil courts, TJ incorporates Alternative Dispute Resolution options as a
means of effectively settling disputes.

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3. For family courts, there are special issues. In family law matters a holistic
approach should be a cornerstone as “the parties typically have a long
history together before the dispute arose, and are likely to remain in contact
after the determination of the specific issue before the court, especially
where minor children are involved.”
Why employ TJ? To mitigate “[t]he danger of juridogenic harm, that is, by analogy
with iatrogenic harm, damage caused unintentionally by the court, simply by using
traditional juridical methods which are inappropriate to the specific family, is very
high.” The Israeli Family Court system provides a working model to assure a
practical team approach, for courts, litigants seeking redress via the judicial
system, and their families. Conciliation, counseling and finding ways of bridging
apparent impasses are of the utmost importance, with judicial intervention as
needed. The goal is to mitigate short term and long-term tolls on families, and most
importantly, the toll of prolonged litigation wreaks on children. Judge Marcus
opines that:
In cases involving children, litigation makes huge demands on the resources
– time, emotional availability, as well as money – of the parents. The parents
are fully occupied with their anger at each other, which may manifest itself
as outright hatred, and with the litigation: meetings with lawyers, trying to
find witnesses, considering the tactics and strategy of the proceedings,
finding finance to pay the lawyer and other experts, preparing for court
hearings and attending court, and worrying about loss of earnings because of
their days away from work. All of these take away time and emotional
availability from the children, and this at a time when the children, who are

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deeply disturbed by the disharmony, which sometimes deteriorates into
verbal or physical violence, see their family breaking up, and are faced with
uncertainty about the future, need their parents more than ever.
Justice, we are told, should be blind. Sadly, there are judges who continue to be
shortsighted and who minimize the importance of the intersection of law and the
social sciences. Judges must resolve cases with high conflict litigants daily. They
may suffer from burnout as a result of the high stress inherent in such cases, and
may grow frustrated when working with litigants who are high conflict or who
present with mental health issues. That frustration may stem from a lack of
understanding of how to grapple with cases involving mental health issues, and
how to best deal with the challenges of mental health issues when they intersect
with family law cases. There are many judges who may not have had trauma based
training, This may lead to a lack of confidence when working with mental health
professionals.
Due process is not undermined by taking an interdisciplinary approach to family
law issues. Child Protective Services is charged with the reunification of families
unless there is proof of endangerment or other issues posing a threat to children. TJ
is one of many devices to ensure that judges do not issue rulings that simply codify
their own hidden biases.
Lawyers are charged with advocating for their clients. When a court takes a
holistic team approach, zealous advocacy must bow to serving the best interests of
families, and especially, the best interests of children. The courtroom can be a
therapeutic change agent.

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Elisa Reiter, J.D. is Board Certified in Family Law and in Child Welfare Law by
the Texas Board of Legal Specialization. Reiter is a Senior Attorney with
Underwood Perkins, P.C. in Dallas, Texas, and is also admitted to practice in the
District of Columbia, Massachusetts, and New York. Contact:
ereiter@uplawtx.com.
Daniel Pollack, MSW, JD is a professor at Yeshiva University’s School of Social
Work in New York City. He was also a Commissioner of Game Over:
Commission to Protect Youth Athletes, an independent blue-ribbon commission
created to examine the institutional responses to sexual grooming and abuse by
former USA Gymnastics physician Larry Nassar. Contact: dpollack@yu.edu.
The authors thank the Hon. Philip Marcus (Retired) for his contributions to this
article.
Original link: https://www.law.com/texaslawyer/2023/09/14/therapeutic-
jurisprudence-how-judges-lawyers-and-mental-health-professionals-can-be-agents-
of-change/