Inadequate Judicial Response to Emotional Abuse

The Core of the Self: Research Shows Effects of Emotional Abuse on Children

For each of us, the development and maintenance of emotional strength depends in large part on self concept. When we receive consistent messages of disapproval, self doubt will develop.

In 1946, Arnold Green, a sociologist, compared the methods employed by lower-class Polish families and middle-class American families in disciplining male children (“The Middle Class Male Child nd Neurosis”). Green opined that “a disapproving glance may produce more terror than a twenty-minute lashing.” Though some may react negatively to Green's hyperbolic articulation of his position, it warrants serious consideration. It is Green's view that repetitive messages of disappointment communicated by parents to their children strike “'the core of the self',” and, as a result, do greater harm than is done by corporal punishment, even when it is severe.

Beginning in the mid 1940s, Kenneth and Mamie Clark, social psychologists, conducted research projects that came to be known, collectively, as the doll studies. Their work was summarized in “Racial Identification and Preference Among Negro children,” a chapter in a text entitled Readings in Social Psychology. The research done by the Clarks played a major role in leading the Supreme Court to conclude, in 1954, that segregation, as a public policy, “generates [in black children] a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Board of Education of Topeka, KS, 347 U.S. 483, 494.

The concept advanced by Green and by the Clarks is that the manner in which others interact with us affects our conceptualization of who we are. It was Green's thesis that statements by parents to their children that convey disappointment will adversely affect the development of healthy self images. The Clarks advanced the position that racial segregation leads young black children to devalue themselves.

Adult on Adult Abuse, and Family Dynamics

Though children are more impressionable than adults, we also know that when adult individuals in intimate relationships are subjected to unrelenting denigration, their ability to maintain healthy self-images is compromised to the point of placing them at risk for significant emotional difficulties.

Roughly a decade ago, Evan Stark and others began writing and lecturing about a form of psychological subjugation that they refer to as coercive control. See, e.g., E. Stark, Coercive Control: The Entrapment of Women in Personal Life. As described by these authors, through the use of coercive control, the abuser psychologically imprisons the victim. Examples of this insidious and pernicious form of psychological abuse include requiring that the victim conceptualize the interpersonal relationship as the abuser does — as a relationship between a ruler and a subordinate; subjecting the victim to unrelenting insults and humiliation; insisting that each hour of the 24-hour day be accounted for, that funds be accounted for, and that friends be vetted (if having friends is permitted at all); and, demanding that the partner in the relationship relinquish the right to engage in autonomous decision-making, passively expressing agreement with opinions voiced by the ruler.

The emotional harm resulting from coercive manipulation of the type described by Stark extends beyond the adult targets of abusers' humiliation and subjugation. Children are the collateral victims. When, in family contexts, children are exposed to the deprication of one parent by the other, they will be negatively affected in ways that are likely to be enduring. For example, it is reasonable to predict that a female child being raised in a home in which her father consistently denigrates her mother (and, quite likely, denigrates women in general) will be strongly and negatively affected by this, even if she never witnesses her father strike her mother or do anything else of a physical nature. A male child being raised in such an environment is at risk for absorbing his father's attitudes, and the sequelae are predictable. His ability to develop healthy relationships with female peers, and his capacity to build a mutually satisfying marital relationship are likely to be impaired. In employment contexts, it is more likely than not that he will be resistant to accepting direction from female superiors.

When the instruments of domination are exclusively psychological, even where the subjugation is extreme, the probability that it will be addressed in our legal system is low. In fact, even when physical abuse is coupled with emotional abuse, the level of concern expressed by courts is often negligible. A recent case was brought under the Hague Abduction Convention and the International Child Abduction Remedies Act (ICARA), in which a court-appointed psychologist opined that returning three children to their father would create “psychological risk,” yet the court ordered them returned. (On appeal, in Neuman v. Neuman, 2017 U.S. App. LEXUS 5536, the U.S. Court of Appeals for the Sixth Circuit remanded, primarily because all members of the family had, by the time of decision on appeal, returned to the United States to reside.)

In Neuman, the three subject children and their parents had moved from Michigan to Mexico for the father's job, and had been living there for four years before an incident occurred that prompted the mother to take her children, without their father's permission, back to Michigan. The alleged incidents that prompted the mother and children's departure from Mexico occurred around Christmas of 2014. According to the mother (whose account was contradicted by the father, but largely corroborated by the children, who witnessed many of these events), the father was drinking heavily on Christmas Eve and on Christmas. On Christmas day, the mother photographed and recorded the father's behavior on a telephone, telling the court, “I felt that maybe if he heard the way he talked to me when he was drunk, he would know how much he was hurting me.”

The following day, she showed him the photos and videos. The father allegedly grabbed the phone from the mother and she struck him several times, trying to get it back. He then deleted the files over the mother's objections. According to testimony, when the father thereafter tried to pour himself a drink, the mother tried to stop him and an argument ensued. After that, things got more physical, with the mother allegedly wielding a frying pan and the father a knife. The children witnessed all or much of this, and intervened. The knife was dropped or thrown at some point, after which the father pushed the mother forcefully, sending her toward the counter, where she broke several ribs. According to the mother's account, when she stood up and cried out that she believed her back was broken, the father said, “Good for you, you lousy bitch, you deserve worse.” The mother and children left a few days later.

When parents wrongfully remove a child from his or her habitual country of residence, the Hague Convention and ICARA generally require return of the child to that habitual country of residence for adjudication of custody matters. However, such return need not be ordered where “there is a grave risk that [the] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable position.” Hague Abduction Convention, art. 3. In her argument for keeping the children in the United States, the mother alleged that there was a grave risk that their return to Mexico would result in harm to them.

The two older children told the court-appointed psychologist that the father had threatened their mother with a knife, that they had physically tried to hold him back, and that they had been scared during the incident. In addition, all three children reported that their father was verbally and emotionally abusive toward them. The psychologist opined that when children observe spousal abuse, “some mental health intervention is necessary with the children and the parent prior to reunification,” and since this had not occurred, reunification of the children with their father was inadvisable. The court conducted an in-camera interview of the children, and took them at their word when they said they were not afraid of their father. The court concluded that although the children had witnessed their father's physical abuse of their mother, and had suffered his emotional (and sometimes physical) abuse themselves, there was no “grave risk” in returning them to Mexico. Specifically, the court concluded that although the father's alcoholism remained untreated, the children faced no physical danger in returning to the father because they had never faced severe neglect at his hands in the past.

The Neumann case raises several questions, two of which are relevant to the adjudication of custody cases in which allegations have been made regarding psychological forms of abuse. First, are family court judges equipped to interview children where the information being sought relates to the possibility that they have been subjected to psychological abuse? Second, if judges conclude that psychological abuse has occurred, do they recognize the long-term impact of such abuse?

And, consider this: As this is being written, in 37 states and in the District of Columbia, statutes and/or precedents that guide the development of parenting plans include what are generally referred to as “friendly parent” provisions. Under the terms of these provisions, courts favor parents who, if designated as primary caretakers, will foster the relationship between the child(ren) and the other parent. The concept has logical appeal; however, in very few states have the dynamics of partner abuse been considered. Victims of abuse (whether physical or psychological) wish to put distance (actual and/or psychological) between themselves and their abusers. Statements reflecting this objective are viewed as expressions of unwillingness to engage in cooperative co-parenting. When this occurs, the abuser, whose demeanor in evaluators' offices and in courtrooms is often unremarkable, is likely to be identified as the “friendly parent.”

In his articles and lectures, Stark has described coercive control as a form of abuse that is “invisible to the law.” Speaking at Rutgers University, in 2012, Stark opined that, from the perspective of the legal system, where there is no physical injury, there is no crime. If Stark is correct in his assessment of the legal system's failure either to discern or to appreciate the consequences of non-physical forms of abuse, identifying the means by which to increase awareness of and sensitivity to non-physical forms of abuse is imperative.

Organizational Contributions

Institutions have tried to address the problem of emotional abuse, and to offer guidance on how the law should approach the issue. For instance, information reflecting the position taken by the United States Department of Justice's (DOJ) Office on Violence Against Women can be found on the Department's website. The DOJ's position is unambiguous: Actions such as those intended to undermine “an individual's sense of self-worth and/or self-esteem,” or to exercise “total control over financial resources” are deemed to be elements of domestic violence. But in the day-to-day operation of family courts, will the DOJ's criteria be considered?

In 2004, The Association of Family and Conciliation Courts (AFCC), an interdisciplinary and international association of professionals whose work involves them in one or more aspects of family conflict resolution, assembled a task force charged with developing Model Standards of Practice for Child Custody Evaluation. The goal was the development of a document that would “guide the practice of evaluators with different professional backgrounds and operating in different contexts and would also be useful to attorneys, judges, and others involved in the adjudication of disputes concerning custody and access” (Model Standards Introduction). The Model Standards were released in 2006, and published in Family Court Review in 2007.

In 2014, writing in the New York Law Journal, Timothy M. Tippins, who writes a regular column for the publication (a sibling of this newsletter), described the Model Standards as “the most current, comprehensive and cogent of the published polestars.” Tippins stated that the Model Standards “present an impressive trove of specific mandates adopted after serious study and extensive debate by a task force that included attorneys, judges and mental health professionals.”

In 2016, the AFCC promulgated its Guidelines for Intimate Partner Violence: A Supplement to the AFCC Model Standards of Practice for Child Custody Evaluation. The AFCC Guidelines conceptualize intimate partner violence as including “conduct that subordinates the will of another through violence, intimidation, intrusiveness, isolation, and/or control.” Increasing judicial attentiveness to the various ways in which abusive behavior is manifested will require increasing the skills of those whose work includes the assessment of such behavior. If the Model Standards and the 2016 Supplement are effectively disseminated, they will encourage divorce attorneys as they interview parents involved in custody litigation and address allegations registered by their clients — and evaluators — to actively seek information bearing on psychological abuse.

The Wisdom of Justice Black

In 1962, the late Associate Justice Hugo Black, commenting on his interpretation of the First Amendment, said: “I understand it to mean what the words say.” If Stark's stated concern regarding “invisible” injuries is considered with Justice Black's interpretation formula in mind, we must contemplate the possibility that categorizing non-physical forms of abuse as forms of intimate partner violence or domestic violence creates strategic problems that can be averted.

In my view, convincing skeptics that harm resulting from psychological abuse, in and of itself, is as significant as harm caused by physical abuse is not better accomplished by describing psychological abuse as a form of intimate partner violence. When an action is referred to as violent, listeners and readers will look for evidence of violence (as that term is traditionally defined); that is, they will look for physical injuries. When no injuries are observed, the risk is created that courts will be unresponsive.

But failures by the courts and other institutions to address the forms of abuse referenced here have broad implications for society, stretching far beyond the area of family law and the questions of who gets child custody or a more favorable divorce settlement. When individuals are belittled and made to feel inadequate, self-esteem falters, the ability to maintain relationships withers, and even the drive to succeed often disappears. Those who believe themselves to be incapable rarely prove themselves to be mistaken.

Beginning four decades ago, the sonorous voices of Ossie Davis and Samuel L. Jackson, speaking on behalf of the United Negro College Fund, urged us to recognize that “a mind is a terrible thing to waste.” We cannot estimate the number of good ideas that are never transformed into valuable public policies, products, or solutions to health problems because the people in whose heads the ideas reside lack the requisite confidence to promote them.

For example, in the early 1960s, American newborns were saved from phocomelia, a devastating birth defect, when Frances Kathleen Oldham Kelsey, a confident and assertive FDA inspector, withstood pressure from a pharmaceutical company and from her FDA superiors, and blocked the approval of Thalidomide. Consider what would have occurred had Frances Kelsey been an emotional abuse victim. Would she have possessed the tenacity that was displayed? Or would thousands more children have suffered debilitating birth defects?

The cost to society of wasted minds is incalculable. We, as legal and mental health professionals, need to do what we can to ensure that the legal system is not discounting the very real harm that one family member's coercive behavior can inflict on the others. Courts must be made aware that it is not enough to be concerned that emotional abuse could signal a propensity to follow up with physical abuse; psychological harm is just as corrosive to the family, and must be dealt with just as urgently.

***** David A. Martindale, Ph.D., ABPP, a member of The Matrimonial Strategist's Board of Editors, is board certified in forensic psychology by the American Board of Professional Psychology and is the Reporter for the Association of Family and Conciliation Courts' Model Standards of Practice for Child Custody Evaluation. Between 1991 and 2003, he served as President of the Board of the Institute for the Study of Family Violence, in New York. His practice is limited to forensic psychological consulting. Additional information may be found at www.damartindale.com.