Forensically Uninformed Therapy During a Custody Case

Forensically Uninformed Therapy During a Custody Case

I want to mention a recent (unreported) custody case out of Nebraska, not for its ultimate resolution (which isn’t surprising) but for its description of a therapist’s involvement in a difficult custody case.  The involvement is concerning and it’s likely a good example of a therapist who is not forensically informed getting involved in a highly contested custody matter—and possibly doing damage.

To start with, the term “forensically informed” simply means, according to a leading article on the subject, that the therapist is knowledgeable about the myriad of forensic mental health and legal issues that often are imposed upon the therapist, the children, their parents, and the treatment itself during contested custodial disputes.  [See the Greenberg article inserted at the end of this post]

“Forensic” refers to the court system in general.  “Forensically informed” in the past referred mainly to the evaluation, assessment, and treatment of individuals in the criminal court system.  In the last 40-50 years, forensically informed professionals have increasing entered the family law court system as well.

The Nebraska case is Chan v. Wabuke (March 21, 2023).  An unmarried couple had a child in 2012.  Mother moved from California to Nebraska with the child and Father exercised long-distance parenting time for a few years, eventually moving to Nebraska to be closer to the child.  At all times in the California and Nebraska proceedings, the parents had joint legal custody (decision-making) of the child.    Upon moving to Nebraska (and at this point the child was about 7), Father filed a Petition requesting more parenting time, and Mother filed a Petition asking for permission to relocate (temporarily, for one year) with the child to Scotland.

Mother reported that the child became extremely anxious once Father moved to Nebraska.  Mother took the child to a therapist, Peterson, who diagnosed the child with adjustment disorder with anxiety and depression.    It’s Peterson’s involvement with the case that creates interesting points about forensically informed therapists. Peterson clearly was not forensically informed.

In diagnosing the child, Peterson relied on Mother’s recitation of the child’s symptoms and “implemented a variety of strategies designed to address the list of symptoms” that Mother reported.   Father attempted to be involved in the child’s therapy and Peterson declined this, stating that she believed it to be a conflict of interest to meet with the child with Father, as Mother was the person who brought the child to her.    (See any problem yet?)

Peterson initially reported that the child did not speak to her about anxiety related to seeing Father.  But once the custody trial started, Peterson reported that the child for the first time reported to her that he wanted to spend only two days at a time with Father, and seven days with Father would be too much.

Are the warning signals chiming yet?    Father moved to be closer to the child, and Mother almost immediately sought  to move out of the country.  Mother took the child to a therapist who refused to meet with Father, citing a (non-existent) “conflict”.  Peterson continued to treat her patient without meeting or having input from the child’s other parent.   And Peterson was willing to testify that the child reported to her, during a custody trial, that the child (then almost aged 10) that the child had specific requests about the parenting time schedule.

I haven’t even mentioned yet that Mother also (a) unilaterally changed the child’s pediatrician; (b) began homeschooling the child in lieu of remote school during Covid; (c) denied Father’s court-ordered summer vacation time in 2020 and 2021; and (d) unilaterally changed Father’s parenting time based on her assessment of the child’s anxiety.

It probably isn’t a surprise that, after hearing, the court denied Mother’s request to relocate to Scotland, increased Father’s parenting time to equal timesharing (alternating weeks), maintained joint custody, but also gave Father final decision-making authority over the child’s education, in the event the parents couldn’t agree on education after mediating. Key to these results, of course, was the fact that there was no allegation of inappropriate parenting or behaviors on Father’s part, and the parents always had joint legal custody of the child.

Most pertinent to this article is the court’s findings about the therapist Peterson:

Further, the court dismissed the testimony from Peterson. Specifically, the court discredited Peterson’s testimony regarding [child’s] sudden communication about visitation time with his father following the first hearing date, stating “[i]t is clear mother discussed what took place on the first day of trial with [child], and that she played a role in [child’s] subsequent discussion with Peterson.” More generally, the court rejected Peterson’s opinions because Peterson had no contact with [Father] and even refused his efforts to engage in [child’s] therapy despite her interactions with [Mother] and numerous observations of [Mother] and [child] together.

Two lessons are important here:   First, a trier of fact is likely to recognize and reject the actions of a parent who attempts to alienate or create a relocation case to prevent the other parent from having significant parenting time.     Mother’s actions in attempting to relocate (out of country!), home-schooling (to reduce Father’s access to the child and educational information), unilaterally choosing the child’s therapist and medical provider, and denying Father parenting time, were punished.   The court had no problem finding that these actions were contrary to the child’s best interests.   

Second, a therapist who purports to treat and diagnose a child without involving both parents in therapy is probably not forensically informed and probably won’t be taken seriously in court.

I found this article helpful in discussing forensically informed therapy.

And here’s a seminal article, Lyn Greenberg et al., about the damage that can be done by a therapist who is not forensically informed:  Is the childs therapist part of the problem? Fam L Qtrly  Right there on page one, this research notes “Clinicians who undertake court-related treatment without adequate expertise run the risk of exacerbating, rather than improving, the life situations of these children.”

Finally, AFCC provides Guidelines for Court-Involved Therapy (2011) that can be found here.

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