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COMMENTARY
'Concept Creep' in Family Law: What Is It
and How Should You Address It?
Elisa Reiter and Daniel Pollack | July 5, 2024
Many psychological concepts have undergone a phenomenon known as
“concept creep.” Concept creep was first named by Nick Haslam in 2016,
who identified its effects on the concepts of abuse, bullying, trauma,
mental disorder, addiction and prejudice. In “Concept Creep:
Psychology’s Expanding Concepts of Harm and Pathology,” Haslam
contends that “in every case there had been a series of extensions to
working definitions, which summed to large increases in the applicability
of each concept.” Others have identified the effect of concept creep on
terms like “gaslight” and “emotional labor.” Another aspect of concept
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creep is hyperbole, or labeling that is hijacked from diagnostic terms,
and pirated into common parlance in a way that alters the initial
definition of the terms.
As Language Evolves, So Must Law
Concept creep can expand in more than one direction. “Horizontal” creep
is evidenced by extending the use of the word “bullying” from the
schoolyard to corporate boardrooms. “Vertical” creep … occurs when a
concept’s meaning extends downwards to encompass less extreme or
intense phenomena than it did previously, such as when ‘bullying’ came
to include unrepeated actions, ‘prejudice’ encompassed subtle micro-
aggressions, and ‘autism’ incorporated high-functioning people with
Asperger’s syndrome.”
Many states now require mental health professionals, attorneys, and
judges to have a minimum number of hours of continuing education in
specific areas, such as trauma. Concept creep has impacted the term
“trauma” in many ways. No longer is trauma simply associated with the
battlefield. In addition to post traumatic stress disorder, trauma is
associated with:
• Culturally driven events, prone to a generational cycle.
• Stress.
• Abuse—physical, emotional, sexual or financial.
Trauma is no longer simply within the province of psychology. Haslam
opines that PTSD may now include “childbirth, sexual harassment,
infidelity, and emotional losses such as abandonment by a spouse or loss
or a sudden move or loss of a home.” ADHD is another such area. Parents
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may have disparate views on how to deal with a child who demonstrates
learning differences.
Parents of children with ADHD, whether married, separated, or divorced,
often experience disagreements regarding: the severity of the child’s
symptoms, how to best manage the child’s behavior, and what treatment
approach, if any, to take. Whether an ADHD child should be placed on
medication for this disorder is frequently a source of dispute among both
intact and divorced families.
In the context of family law and divorcing families, concept creep can
have significant implications, potentially leading to the
mischaracterization of behaviors and situations, and consequently,
inappropriate legal interventions. For instance:
• Overdiagnosis of Abuse and Trauma: Broadening of concepts
like abuse and trauma may lead to situations where normal
parental disciplinary actions or conflicts within a marriage are
labeled abusive or traumatic.
• Mischaracterization of Mental Health Issues: When mental
health concepts are expanded into the common parlance in an
idiosyncratic fashion, the result can be the pathologization of
regular emotional responses in the context of family disagreements
or divorce. A parent’s sadness or a parent’s flash of anger during
divorce may be misinterpreted as being indicative of a mental
health disorder, potentially impacting custody decisions and/or
leading to unnecessary treatment recommendations.
• Making Matters Worse: When certain behaviors are (mis)labeled
with clinical or diagnostic terms, doing so can exacerbate conflicts
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between divorcing parties. Using loaded language may create an
environment of victimization and of defensiveness, exacerbating
the situation and making it more difficult for parties to find
common ground that allows them to reach amicable settlements.
• Legal Interventions Run Amok: We all strive to protect the best
interests of children in family courts. However, if concept creep
leads to the phenomenon of over diagnosing abuse, trauma and
mental health issues, the pendulum swings, resulting in what may
be inappropriate legal interventions, such as protective orders or
orders mandating supervised access to and possession of children.
While well-intentioned, such interventions yield result in the
disruption of family dynamics, with a net result of grave harm to
children and families.
So, what can we do? In light of the pernicious presence of concept creep
in our language, here are some suggestions:
• Education: Judges, mental health professionals and legal
professionals should engage in training on the phenomenon of
concept creep and the impact of concept creep on family law cases.
Education would help such professionals to evaluate claims and
evidence, and increase the likelihood of informed decisions.
• Expert Testimony: In cases where abuse, trauma, or mental health
allegations are raised, courts should rely on testimony from
qualified experts who can provide objective assessments based on
established diagnostic criteria and professional standards.
• Clear Definitions: To the extent possible, family law statutes and
court rules should provide clear and specific definitions of concepts
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like abuse, trauma, and mental health issues. We need established
clinical criteria, not idiosyncratic labels.
• Focus on the Best Interests of Children: Family law decisions
should focus on and prioritize the best interests of children. Courts
must weigh the potential impact of their interventions—which may
be driven by concept creep—against the potential harm they may
wreak on family relationships and stability.
Be aware of the phenomenon of concept creep. Implement appropriate
safeguards. The family law system can better serve the needs of
divorcing families and protect the well-being of children while upholding
the principles of fairness and due process if everyone understands that
one definition may not hold for all applications of one concept.
Elisa Reiter, a senior attorney with Calabrese Budner in Dallas, Texas, 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. She is also admitted to practice in the District of Columbia,
Massachusetts, and New York. Contact: elisa@calabresebudner.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.
Original link: https://www.law.com/dailybusinessreview/2024/07/05/concept-
creep-in-family-law-what-is-it-and-how-should-you-address-it/