Anatomy of Divorce: Part IV

[Family Court Strategies: When Your Partner Has BPD OR NPD Traits.]

Anatomy of Divorce: Part IV

• Custody evaluation



• Psychological evaluation



• Visitation



• Rights of first refusal



• Expert or third-party witnesses



• Guardian ad litem



• Parenting coordinator



• Child advocate



• Co-parent counseling

Custody is handled different ways depending on where you live. In some states and countries, full or sole custody is actually a combination of several different types of custody and visitation. For example, there is physical custody, which is usually labeled primary physical custody, or sole physical custody. If you have primary physical custody, you are often considered the custodial parent, while the other parent is considered non-custodial. Even if you have primary physical custody, you and the other parent may share joint legal custody. This means that both parents must give consent for medical and educational decisions. For example, if you want your child to see a counselor, both parents must agree. This is often a very contentious issue when one parent has BPD. In some states, joint legal custody is further carved into a designation known as “decision-making.” This gives one parent with decision-making authority to override a stalemate. However, this can be more challenging to enforce.

Custody evaluation

Either party can request a custody evaluation.  The other party can agree, or the judge will decide.  A custody evaluator is usually a forensic psychologist known to the court.

A custody evaluation can cost about $5,000 USD or more. There may be additional costs if the evaluation takes a long time. One of the parties may pay for it or the judge may order both parents to split the cost.  It usually takes anywhere from a few weeks to several months, and involves interviews with both parents and with the kids, and maybe with other people who know the family well.

The custody evaluation generally writes a report summarizing the findings and makes a custody recommendation.  The recommendation will probably have a lot of influence on the judge’s decision if the case goes to court, so the parties may use it as the basis for a settlement if they want to save the cost of a trial.

Psych evals

The court or the custody evaluator can ask both parties to submit to a psychological evaluation – a formal test like the MMPI-2 (Minnesota Multiphasic Personality Index). This test includes roughly 500 either/or questions that can take about two hours to finish.

The results can indicate serious problems like BPD or another personality disorder, or smaller issues like depression and anxiety. This test is also designed to detect when someone is “presenting falsely.”

Visitation

Visitation will depend on many things. A word of caution here about bias in the court. Many lawyers and judges seem to favor children spending majority time with the mother (unless you live in a 50/50 default state like Washington), and especially when the kids are young. However, research has also shown that men tend to ask for primary custody less than women, which may reflect a bias that is self-perpetuating, particularly among lawyers who dissade fathers from asking for primary physical custody. Ask for the schedule you think is best for your kids, and challenge your lawyer to explain what -- if any -- consequences exist if you ask for primary physical custody. In one study, fathers who asked for primary physical custody were successful at the same rate as mothers requesting the same.

Visitation schedules may also vary by age. Usually the courts prefer that a young child not be away from either parent for more than a few days, so common schedules (at least in the US) include 5-2-2-5 (with dad for 5 days, then with mom for 2, then with dad for 2 days, then with mom for 5).  Older kids might have a 7-7 schedule (with dad for a week, then with mom for a week).  Or one parent may be given primary custody, with the other parent caring for the child only on alternate weekends and possibly an evening or overnight in between. This is sometimes referred to as “every other weekend + 1” or EOW + 1.

Either party can propose a parenting plan that typically includes a schedule for where the kids will stay during the week, the weekends, on holidays, vacations and other issues like religion, health care, birthday parties, travel, etc. In general, the more specific you are, the better. For example, does a Friday to Sunday schedule start when the child is out of school, or when after school is over? And if school is canceled on a Friday, or the child does not attend after school, when does visitation start? Read about common co-parenting issues that you may want to consider in advance of writing up the parenting plan.

Rights of first refusal

Rights of first refusal (RoFR) is to ensure that the other parent does not leave the child with a babysitter when the other parent is available. However, our members have had mixed results with this. Some BPD parents will exploit this and expect the other parent to drop everything and take the child on a moment’s notice. It is important to frame this in detailed language so that RoFR does not become another way to control the other parent or put the kids in the middle.

Expert or third-party witnesses

This may be an expensive option, but might be the best way to establish some things so the court can't ignore them, like the impact of a parent's untreated personality disorder on the child, or to refute or "impeach" a biased, incompetent or incomplete custody evaluation report. Keep in mind that even if there is a BPD diagnosis (whether through a custody evaluation, psyche evaluation, or pre-existing diagnosis), an expert witness may need to explain to the court why the parent’s BPD has a negative effect on his or her ability to parent.

Guardian ad litem

The judge may appoint a guardian ad litem to spend time with the child and with both parents, and this person can strongly influence the judge’s decisions. Like all third-party professionals who get involved in custody matters, a GAL can be a blessing in disguise or a parent’s worst curse. Try to learn as much about the quality of the GALs involved. Many of them are volunteers that go through very little training, and they may have zero background in child psychology, much less any familiarity with mental illness. If a GAL is being appointed, see if you can select three of the best in your county, and then let the other parent choose the one you will hire.

Parenting coordinator

Different states may use parenting coordinators, who are typically either lawyers or psychologists trained to work with high-conflict parents. Similar to GALs, parenting coordinators can be a blessing or a curse. An insightful, knowledgeable PC will be able to testify in court if necessary, and his or her testimony may influence the court more than any other type of evidence. In some states, PCs have an extension of judicial duties and both parents sign a parenting order, and a judge swears in the PC during a special hearing in court. In other states, PCs are simply intended to help parents communicate effectively with the goal of minimizing conflict. An incompetent PC can be a trash can for money, and if he or she does not recognize the personality disorder, his or her testimony can be damaging in court.

Child advocate

In some states, if the child is not in counseling then the child or parent can request a child advocate. The advocate meets with the child, explores their preferences for establishing physical custody, visitation, holidays, etc. so the teen doesn't have to appear in court.

Co-parent counseling

Courts seem to be very fond of co-parent counseling. Unfortunately, this type of counseling is often ill-equipped to deal with the boundary issues common to high-conflict divorces and custody situations. A person with BPD will often look at the counselor as a potential negative advocate and work to sway them to villify the non-BPD parent. There is often no boundary nor consequence that a co-parent counseling can set in order to curb the high-conflict behavior, and it is questionable whether these counselors are worth the cost, except as a potential key witness.

Anatomy of Divorce: Part I

• What can I expect?



• Preparing for divorce



• Start documenting



• Filing for divorce



• Hiring a lawyer

Anatomy of Divorce: Part II

• Serving the papers



• The response



• Mediation



• Arbitration



• Temporary orders



• Final orders



• Divorce decree



• Property division

Anatomy of Divorce: Part III

• Discovery



• Depositions



• Hearings and trials



• Motions for contempt



• Ex parte motions

[livednlearned]

Anatomy of Divorce: Part IV

• Custody evaluation



• Psychological evaluation



• Visitation



• Rights of first refusal



• Expert or third-party witnesses



• Guardian ad litem



• Parenting coordinator



• Child advocate



• Co-parent counseling

Custody is handled different ways depending on where you live. In some states and countries, full or sole custody is actually a combination of several different types of custody and visitation. For example, there is physical custody, which is usually labeled primary physical custody, or sole physical custody. If you have primary physical custody, you are often considered the custodial parent, while the other parent is considered non-custodial. Even if you have primary physical custody, you and the other parent may share joint legal custody. This means that both parents must give consent for medical and educational decisions. For example, if you want your child to see a counselor, both parents must agree. This is often a very contentious issue when one parent has BPD. In some states, joint legal custody is further carved into a designation known as “decision-making.” This gives one parent with decision-making authority to override a stalemate. However, this can be more challenging to enforce.

Custody evaluation

Either party can request a custody evaluation.  The other party can agree, or the judge will decide.  A custody evaluator is usually a forensic psychologist known to the court.

A custody evaluation can cost about $5,000 USD or more. There may be additional costs if the evaluation takes a long time. One of the parties may pay for it or the judge may order both parents to split the cost.  It usually takes anywhere from a few weeks to several months, and involves interviews with both parents and with the kids, and maybe with other people who know the family well.

The custody evaluation generally writes a report summarizing the findings and makes a custody recommendation.  The recommendation will probably have a lot of influence on the judge’s decision if the case goes to court, so the parties may use it as the basis for a settlement if they want to save the cost of a trial.

Psych evals

The court or the custody evaluator can ask both parties to submit to a psychological evaluation – a formal test like the MMPI-2 (Minnesota Multiphasic Personality Index). This test includes roughly 500 either/or questions that can take about two hours to finish.

The results can indicate serious problems like BPD or another personality disorder, or smaller issues like depression and anxiety. This test is also designed to detect when someone is “presenting falsely.”

Visitation

Visitation will depend on many things. A word of caution here about bias in the court. Many lawyers and judges seem to favor children spending majority time with the mother (unless you live in a 50/50 default state like Washington), and especially when the kids are young. However, research has also shown that men tend to ask for primary custody less than women, which may reflect a bias that is self-perpetuating, particularly among lawyers who dissade fathers from asking for primary physical custody. Ask for the schedule you think is best for your kids, and challenge your lawyer to explain what -- if any -- consequences exist if you ask for primary physical custody. In one study, fathers who asked for primary physical custody were successful at the same rate as mothers requesting the same.

Visitation schedules may also vary by age. Usually the courts prefer that a young child not be away from either parent for more than a few days, so common schedules (at least in the US) include 5-2-2-5 (with dad for 5 days, then with mom for 2, then with dad for 2 days, then with mom for 5).  Older kids might have a 7-7 schedule (with dad for a week, then with mom for a week).  Or one parent may be given primary custody, with the other parent caring for the child only on alternate weekends and possibly an evening or overnight in between. This is sometimes referred to as “every other weekend + 1” or EOW + 1.

Either party can propose a parenting plan that typically includes a schedule for where the kids will stay during the week, the weekends, on holidays, vacations and other issues like religion, health care, birthday parties, travel, etc. In general, the more specific you are, the better. For example, does a Friday to Sunday schedule start when the child is out of school, or when after school is over? And if school is canceled on a Friday, or the child does not attend after school, when does visitation start? Read about common co-parenting issues that you may want to consider in advance of writing up the parenting plan.

Rights of first refusal

Rights of first refusal (RoFR) is to ensure that the other parent does not leave the child with a babysitter when the other parent is available. However, our members have had mixed results with this. Some BPD parents will exploit this and expect the other parent to drop everything and take the child on a moment’s notice. It is important to frame this in detailed language so that RoFR does not become another way to control the other parent or put the kids in the middle.

Expert or third-party witnesses

This may be an expensive option, but might be the best way to establish some things so the court can't ignore them, like the impact of a parent's untreated personality disorder on the child, or to refute or "impeach" a biased, incompetent or incomplete custody evaluation report. Keep in mind that even if there is a BPD diagnosis (whether through a custody evaluation, psyche evaluation, or pre-existing diagnosis), an expert witness may need to explain to the court why the parent’s BPD has a negative effect on his or her ability to parent.

Guardian ad litem

The judge may appoint a guardian ad litem to spend time with the child and with both parents, and this person can strongly influence the judge’s decisions. Like all third-party professionals who get involved in custody matters, a GAL can be a blessing in disguise or a parent’s worst curse. Try to learn as much about the quality of the GALs involved. Many of them are volunteers that go through very little training, and they may have zero background in child psychology, much less any familiarity with mental illness. If a GAL is being appointed, see if you can select three of the best in your county, and then let the other parent choose the one you will hire.

Parenting coordinator

Different states may use parenting coordinators, who are typically either lawyers or psychologists trained to work with high-conflict parents. Similar to GALs, parenting coordinators can be a blessing or a curse. An insightful, knowledgeable PC will be able to testify in court if necessary, and his or her testimony may influence the court more than any other type of evidence. In some states, PCs have an extension of judicial duties and both parents sign a parenting order, and a judge swears in the PC during a special hearing in court. In other states, PCs are simply intended to help parents communicate effectively with the goal of minimizing conflict. An incompetent PC can be a trash can for money, and if he or she does not recognize the personality disorder, his or her testimony can be damaging in court.

Child advocate

In some states, if the child is not in counseling then the child or parent can request a child advocate. The advocate meets with the child, explores their preferences for establishing physical custody, visitation, holidays, etc. so the teen doesn't have to appear in court.

Co-parent counseling

Courts seem to be very fond of co-parent counseling. Unfortunately, this type of counseling is often ill-equipped to deal with the boundary issues common to high-conflict divorces and custody situations. A person with BPD will often look at the counselor as a potential negative advocate and work to sway them to villify the non-BPD parent. There is often no boundary nor consequence that a co-parent counseling can set in order to curb the high-conflict behavior, and it is questionable whether these counselors are worth the cost, except as a potential key witness.

Anatomy of Divorce: Part I

• What can I expect?



• Preparing for divorce



• Start documenting



• Filing for divorce



• Hiring a lawyer

Anatomy of Divorce: Part II

• Serving the papers



• The response



• Mediation



• Arbitration



• Temporary orders



• Final orders



• Divorce decree



• Property division

Anatomy of Divorce: Part III

• Discovery



• Depositions



• Hearings and trials



• Motions for contempt



• Ex parte motions