Disciplines overlap in family law cases

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Gregg Herman

As divorce lawyers, we are intimately aware of the overlapping relationship between psychology and family law.

In certain cases, we feel that we are practicing more psychology than law. At the same time, it is also not uncommon for clients who are in counseling to report discussions with a therapist which dangerously tread on the line of practicing law without a license — or even cross the line. Yet, until recently, it was rare that family law legal professionals worked in tandem, or even communicated, with mental health professionals.

The intersection is most dramatic — and important — when it comes to issues involving children. Courts look to the guardian ad litem for recommendations on how to protect a child who is caught in the middle of a custody dispute, including custody orders and allocation of physical placement. Yet nowhere in legal training are such issues included. It is doubtful that even one law school offers a course on child development or, of critical importance, the effect of domestic violence on children. Yet lawyers are frequently called upon to make recommendations on these issues.

Meanwhile, the legal system tries to cope with the effect of divorce on children by experimenting with various programs. For years in Wisconsin there was a mandatory counseling requirement. Then, mediation became mandatory in most custody or placement disputes. Later, many counties made attendance at a parenting class as a condition of getting a divorce. Communication counseling seems to be the newest attempt to address these issues.

While these programs are well-intended, there is little consideration given to the psychological literature studying the effects of these programs, or for that matter, of much of family law practice. This literature includes studies of parenting programs, mediation and much more. Yet, it seems to exist in a different universe than the real world of statutory mandates and court proceedings.

Similarly, psychologists are often the key element in custody and placement disputes by serving as evaluators and offering expert testimony. Again, there is a gap between the psychological discipline and the legal process, which is frequently given short shrift in the family law system. It is questionable whether the psychological discipline includes recommending a placement schedule. Yet, judges frequently adopt psychological reports and recommendations without asking this question.

The overlap extends to the everyday practice of lawyers. We make a judgment call on which clients to represent, hoping that our armchair judgment that the distress exhibited by a potential client is related to the current stress of the circumstances, and not some deep, underlying psychosis.

Over the past several years, collaborative divorce has developed as an alternative to traditional practice. In a collaborative divorce, lawyers and mental health professionals work as a team, dividing responsibility according to their discipline. Equally important, training for collaborative divorce is usually interdisciplinary, allowing each profession to learn about the other.

Of course, most cases are not collaborative, and even some collaborative cases are not interdisciplinary. Little or no legal CLE includes mental health therapists as attendees, and vice versa. For the most part, lawyers and mental health professionals have each existed in their own worlds and intersect, if at all, in a forensic basis.

This article is the introduction to a series of articles looking at the relationship between family law practice and mental health practitioners. These articles will discuss several aspects of this relationship, including studies of the effect of aspects of the legal process and the use of psychologists as experts and as coaches. The series will conclude with a description of efforts to improve the relationship of lawyers and mental health professionals to the benefit of all involved in family law cases.

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. FamLawUpdate, a free e-mail service of Loeb & Herman, is available by going to www.loebherman.com or sending an e-mail to [email protected].