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COMMENTARY
Keeping Family Courts Accountable While
Too Many Families Are Unraveling
Elisa Reiter, Daniel Pollack and Jeffrey C. Siegel | October 3, 2023
It takes just a few data points to portray the dissolution of too many
American families today. According to the Centers for Disease Control
and Prevention (CDC) and other resources:
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• In 1968, 42% of households were nuclear families (two parents
plus one or more children under the age of 18). In 2018, that
number had decreased to 22%.
• There were approximately 332 million residents in the USA in
2018, so around 73 million people were part of a nuclear family at
that time.
• Currently, 40.4% of all births are to unmarried women.
• In 2021, approximately 7.21 million families were led by a single
man with no spouse.
• As of 2022, approximately 60,000 minor children were being
raised by a widowed parent.
• After no significant change between 2001 and 2007, the suicide
rate among young people ages 10‒24 increased 62% from 2007
through 2021.
• The homicide rate among young people ages 10-24 increased 60%
from 2014 through 2021, after no significant changes between
2001 and 2006.
• 15% of high school students reported having ever used select illicit
or injection drugs (i.e. cocaine, inhalants, heroin,
methamphetamines, hallucinogens, or ecstasy) and 14% of
students reported misusing prescription opioids.
• 25% of women and 11% of men will experience domestic
violence in their lifetimes.
• Roughly 1 in 100 children in the U.S. have their parents’ rights
terminated by age 18.
• Recent and comprehensive Florida specific data can be
accessed here.
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Florida Statute 61.13(3) provides in pertinent part that its family court
judges consider the following factors in making custody determinations:
(3) For purposes of shared parental responsibility and primary
residence, the best interests of the child shall include an evaluation of all
factors affecting the welfare and interests of the child, including, but not
limited to:
(a) The parent who is more likely to allow the child frequent and
continuing contact with the nonresidential parent.
(b) The love, affection, and other emotional ties existing between the
parents and the child.
(c) The capacity and disposition of the parents to provide the child with
food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in lieu of medical care, and other
material needs.
(d) The length of time the child has lived in a stable, satisfactory
environment and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed
custodial home.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h) The home, school, and community record of the child.
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(i) The reasonable preference of the child, if the court deems the child to
be of sufficient intelligence, understanding, and experience to express a
preference.
(j) The willingness and ability of each parent to facilitate and encourage
a close and continuing parent-child relationship between the child and
the other parent.
(k) Evidence that any party has knowingly provided false information to
the court regarding a domestic violence proceeding pursuant to s.
741.30.
(l) Evidence of domestic violence or child abuse.
(m) Any other fact considered by the court to be relevant.
Ideally, every parent should have the ability to instill a moral code and a
value system in their children. But not every parent does, nor are they
capable of doing so. Some of them rely on grandparents or other
extended family members to raise children. Some families become
enmeshed in what advocates refer to as lifetime cases. Children are often
caught in the middle of such cases.
Good parents come in all shapes, colors, creeds, sexual orientations and
socioeconomic levels. While addiction and mental health issues may
contribute to some of the statistics delineated above, the emotional
instability that surrounds these children can create complex legal issues.
Consequently, some family court judges are asked to make difficult
decisions on a daily basis. If a child is exposed to danger, or if a parent’s
acts or omissions endanger the child, should that mean that children are
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removed from the parent? Does exposure to danger mean that the
parent’s parental rights must be terminated, and their relationship with
their children cut off? What impact does the termination of parental
rights have not only on the children made the subject of such cases, but
on their relationships and on their children? What happens if and when
the remaining parent nonetheless continues to welcome the parent
whose rights have been terminated into the children’s lives?
Family court judges look for more than a threat of metaphysical harm or
the possible ill effects of one parent staring idly into their cell phone
rather than engaging with their children. Instead, family court judges
analyze evidence to consider whether acts or omissions on a parent’s
part are directed at the child made the subject of a termination case, or if
the child suffered a physical or psychological injury as a result of that
parent’s act or omission.
We see cases in which a child may display, “an uptick in tantrums, fear-
based anxiety related behaviors, and verbalizations of feeling scared
when visiting” a parent. If a parent fails to react when hearing testimony
that their child would say to foster care providers, prior to family
therapy visits, that the child does not feel safe when with the parent,
even under the therapist’s supervision, and prefers to stay home and not
attend the therapy session nor to see their parent, what should that
indicate to the trial court judge? Should the trial court just stop visits
with a parent if advised that following visits, the child made the subject
of the suit displays increasingly problematic behavior?
How do we serve the best interests of children in such complicated
situations? What are family court judges to do in the face of conflicting
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testimony? How do we prevent the unraveling of the American family?
Unfortunately, while many mental health professionals have tried to
educate the courts on the reasonable and expected emotional responses
during the transitions wrought by divorce, children’s responses have
become weaponized in order to gain an advantage in court. Mental
health professionals cannot answer many of the child’s behavior-related
questions posed by attorneys because the answers are just not that
simple. Courts need accurate data in order to make truly informed
decisions. Too often, the mental health professional wants to provide
that reliable information, but—understandably from their perspective—
opposing attorneys want to win the case for their client. Competing
needs and competing professional responsibilities often push “best
interests” to the rear.
Service plans and temporary orders are more than checklists. In cases
involving allegations of physical and sexual abuse, service plans should
address the means of accomplishing substantive behavioral changes,
especially in light of an outcry of abuse. Often, when allegations of abuse
are raised, a defense of coaching or alienation is asserted.
Children deserve a safe and appropriate home life. Whether in an intact
nuclear family, a blended family, a single parent home, a family with a
widowed parent, etc., children need safety and nurturing. Parenting is
about more than meeting a child’s basic needs. It is about helping
children thrive in a safe haven. When a parent improves their behavior
after court intervention and as a result of counseling, that is promising,
but such improved behavior does not always offset “evidence of a
pattern of instability and harmful behavior in the past.” Moreover, as
gatekeepers, trial courts are “not bound to accept the truth or accuracy
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of a parent’s testimony either as to past actions or future intentions.”
Trial judges must assess whether a parent is unable or unwilling to take
responsibility for the reasons why that parent’s children are in foster
care or in some other alternative placement, as well as analyzing such a
parent’s denial or minimization of the issues that their children are
confronting.
Advocates are charged with being zealous in representing clients.
Attorneys, like their clients, can become polarized in their view of the
case. Intellectual integrity must be a factor in every case—for the parties,
for their advocates, for the mental health professionals involved in the
case, and for the judiciary. When parents cannot sort things out on their
own, judges have a variety of tools to implement in cases to try to bridge
impasses even in the most high conflict cases. Each party and each
attorney bring their own perspective to the case. Ideally, judges should
have the ability to find balance and truth in the midst of long court cases.
As tightly woven together as some families are, others unravel very
easily. Judges are sometimes forced to order the unraveling of families.
We offer a metaphor: Knitting may be defined as the “formation of a
close texture by the interloping of successive series of loops of yarn.”
“The act of knitting is based on the repetition of two stitches, plain and
purl, creating a fabric by moving forwards and backwards, and on the
shaping of a garment by increasing or decreasing those stitches.” When a
child makes an outcry, the fabric of the family is torn. Parents and
professionals need to listen. The child must feel heard. Families are
stitched together in a variety of ways. Judges help many families stay
together by monitoring temporary orders and service plans, and by
reviewing key evidence. Only when clear and convincing evidence is
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presented, and a variety of other due process requirements are met,
should parental rights be terminated. The child’s outcries must be
investigated and their justifiable fears must be validated, even if doing so
means the unraveling of the child’s family of origin.
Family court judges have difficult tasks. They must be exemplary
knitters. Facing tensions, family court judges constantly try to cable
together rulings that serve the best interests of children.
Elisa Reiter is Board Certified in Family Law and in Child Welfare Law by
the Texas Board of Legal Specialization. She has served as an Adjunct
Professor at SMU. Reiter is a senior attorney with Underwood Perkins, P.C.
in Dallas, Texas. She is also admitted to practice in the District of Columbia,
Massachusetts, and New York. Contact: ereiter@uplawtx.com.
Daniel Pollack 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.
Jeffrey C. Siegel is a forensic and clinical psychologist in Dallas, Texas. In
practice since 1981, he has been conducting child custody evaluations for
over 40 years in multiple states and has provided court testimony over 300
times. He is board certified in Clinical Psychology and Family Psychology
through the American Board of Professional Psychology and is a Fellow of
the American College of Forensic Psychology. Contact: jeff@siegelphd.com.
Original link: https://www.law.com/dailybusinessreview/2023/10/03/keeping-
family-courts-accountable-while-too-many-families-are-unraveling/