We all like to talk about the parents in custody battles and we hear about everyone viewing them through a microscope. Picking them apart, analyzing every move and every breath and judging everything they do. We look for reasons to like or dislike one or the other. Everything the parents do, everything the children do is measured and judged.

Why don’t we look at this from another approach? Just recently I viewed a video where a judge went on a several minute rant, completely lost control for several minutes at a time during the hearing. In fact, at times seemed unable to control his compulsive and impulsive shifts back to his unprofessional and violent state throughout the hearing. It was as if he just couldn’t stop himself. And he decided how many family law cases? And he determined the fate of how many children that would be reduced to a visitor with one parent and live with the other? Are judges more qualified to decide this than the parents themselves?

Who are these people judging parents and their children? Who are these judges and experts really? How is their brain processing their decisions?

We can put the same criteria out in front of judges, attorneys, and experts, and expect different results. Why is that? We cannot predict the way that their processor (their own brain) is processing this information. How are the judges, attorneys, and experts brains processing this information? What is influencing their decisions? What are their built in biases and what are their beliefs that are controlling their reflective and impulsive parts of their brains? Why are parents and children being subjected to these biased and personal beliefs of those that work in this field?

You might think that this type of research only applies to people with extreme addictions, or those that we accuse of having a problem. Not so, all brains go through decision making processes, and whether you are a judge, attorney, or any other expert or professional, your decisions are based on beliefs and biases. The decision making processes are relevant for all people. This includes judges, attorneys, and all other experts. Studying the extremes of decision making is the best way we have for understanding all decision making processes. This is how we develop most of our training whether we are training leaders or helping someone overcome an addiction, trauma, or work through a fear or anxiety. They all apply. The treatments are what may differ, but the way that the brain processes and decides should relatively be the same.

We hear about people all the time that we didn’t expect to be a candidate for a horrific crime. We hear that he or she was so nice, and they never would have thought they were capable of doing such a thing, etc., etc. The 911 terrorist that lived as a family man. Who would have thought he was capable of such acts? Okay, I’m not saying that the judges and experts are some masked and unknown terrorist or villain. I am saying that everyone has an individual processor (their brain) that has unknowns to the outside community, and that there are variables that effect their decisions. And that while we can try to guess their patterns of decision making based on their activities in their lives and the behaviors that others have observed, and the fact that they gained enough consensus and popularity to be elected in the case of the judges, we cannot trust that they are not falling victim to their own built in instinctual, reflective, or impulsive biases and personal beliefs, and subjecting those that come before them to these.

We can however make sure that we run a system that reduces the possibility for these biases and personal belief systems to contribute to the final decisions and outcomes in family law cases in divorce and custody battles. We can limit how these biological processes are affecting the outcomes of the lives of parents and their children?

We could apply more training interventions that are used in clinical practices from decision based research and impose more and more of them on our judges and attorneys. “Importantly, “reinforcement” processes (Bunge, Burrows, & Wagner, 2004; Seger, 2008) form the foundations for subsequent “reprocessing.” In this way, rather than a reflective system of a set of processes acting as a homunculus exerting control to achieve some distal goal, a reflective state can be defined that changes how previously reinforced associations affect response selection. From this perspective, addictive substances affect the availability of information concerning immediate versus long-term outcomes of reflective versus impulsive responses, which affects response selection.” This however is not the best solution either. As you can see from this research article, there is still much that is not understood and much that is still unpredictable. Family law should not be tolerating unpredictable rulings and orders.

People’s decisions can be unpredictable even in the most predictable of circumstances, and when left to make decisions based on subjective matters, they have only their own brain to rely. That brain has an unknown set of variables where dual processes are at work creating the output that is based on their own individual set of reflective and impulsive set of standards that have been built up over the years based on what they were exposed to and based on their own personal biases and beliefs. The lives and the custody of children should not be left to an unpredictable status or the many variables that we are faced with in the family law system. Even when they say they are well-trained, and well aware of these tendencies and that they take precautions, that is still in their own view and with their own set of standards or the set of standards that their chosen field of study has set and claimed. If you look at what they are in family law you will see that even the judges training guides claim that these standards for determining what is best for children in divorce are broad and subjective.

We can argue for days whose research is better than others and whose methods produce better results. We can argue for days whether your idea for raising the child is better than the parent, whether you have more training or experience and what you believe or your friend that is a Ph.D., M.D., MSW, etc, and what they believe has worked best. And as soon as you argue that you believe that parents fighting for their rights is not putting their children first – you have allowed your bias and personal beliefs to affect your recommendations and narrowed the solutions to only those that you are comfortable with. And when you argue that you don’t believe that 50/50 equal custody is ever good for a child, you again have limited a family to your views and your comfort, or should I say subjected them to your discomforts. For whatever reasons you have developed these personal beliefs and biases and that’s fine as long as they are not imposed or limiting to the families that you represent.

The bottom line is that even knowing or believing that you know that what you think is best is better than the parents’ ideas, you are not supposed to be forcing those onto the parents and children regardless. Forcing parents and children to live according to the individuals involved in their case is a violation of their fundamental rights. Just as you cannot impose your religion on them, you should not be imposing your personal biases regarding this area on them as well.

The article goes on to say that “At present, we do not know which cognitive biases are best tackled in which addictions or other problems, which methods work best to change these biases, whether each bias should be retrained separately, or to what extent training of more general control mechanisms may work as well.” It is dangerous to run a system based on so much arbitrary and subjective standards. It undermines the very nature and beliefs of our American way of life. Our laws should not be based on imposing your ideas over theirs in any unequal or biased way. Laws are based on meeting minimum standards and ensuring that others can function and pursue their ideas in life as long as they are not taking away another person’s ability to pursue theirs. Attorneys, judges, mental health care experts can make suggestions to parents and try to convince them to adopt their ideas, but they should remain just that suggestions and nothing more. They should not be imposed or required or ordered as the standard by which that family must live. Never should a parent that chooses to not adopt those suggestions be threatened that they will lose their equal right to decide things in their child’s life if they are brought before a judge.

By imposing someone else’s idea of what is best for the family or the children onto a family is taking away that family’s individual and unique ability to grow and discover and become what they choose for themselves and their children. Therefore we should not be requiring parents to follow the forced threats and decisions of others in this highly emotional field of family law.

Those that work in the family court system need to get over the idea that they need to fix everyone, that they are there to save the children from something that personally doesn’t sit well with that professional or expert, that they know better ways and therefore are entitled to impose those ways onto others, that they have the key to making life better for the children. And trying to say that mediation in this current state is a solution while the threat of being bullied into giving up some of your rights to your children is being considered compromise looms over your head is nothing more than litigation in disguise.

These practices need to be seen for what they are, based on biases and personal beliefs, bullying and threats. These practices are harming parents and their children, they are harming the relationships with children and their parents, they are robbing the children of the benefits from their parents, and they are robbing the parents of their benefits that they receive from their responsibilities as parents. These practices are harming our communities and damaging our children’s futures.

It is time to realize that the job of the family court system is one of protecting and enforcing rights, not judging individual private family relationships that are within the standards of the law. Those that work within the field do not have to like others or like what they do, but they do need to learn to respect them and their decisions. They do need to learn what their job is, and that is to teach parents that they both have rights and that going in to court to interfere with the other parent’s rights is going to require a very high bar and one that should be as difficult as trying to remove their right to free speech.

Once that is reset within attorneys, judges, and other experts and professionals that work within this field there will be an entirely different approach; one that does not encourage fighting, but encourages true mediation and acceptances and one that can finally allocate the resources to parents that have difficulty learning that they do not get to control the other parent or the other parent’s time or the other parent’s decisions. One where an attorney can really take on the role of a collaborative or mediation approach. This can only happen when there are no threats to parents who differ in their ideas and approaches, but one where they can teach tolerance and acceptance and use approaches that teach coping and communication skills. When the approach is more positive even those that walk in negative are more likely to be guided to better results over time.

All of these take practice and encouragement and would be a huge improvement from the current system that we have in place today. I believe that most of the attorneys that I talk to want this change but are afraid. I believe that many of them are afraid to let go of the power and the control that they have had thus far, afraid that they too might have to learn that they are not supposed to be in control of anything other than protecting rights. And then there are those that are afraid because the other side might be rewarded in court for their attacking and adversarial approach. That is why the entire system has to change and adopt this approach.

We shouldn’t need more proof that our current system causes damage and that the adversarial negative approach has become a system of bullying, making threats, using intimidation, and imposing others ideas while impoverishing the parents and children. We certainly don’t need more proof of it. We are publishing a book that is going to help you avoid these pitfalls built into our current system whether you are a parent, attorney, judge, legislature, or health professional.

Check back soon for the availability of our book. We expect it to come available within the next couple of months. The book is called: “Not in the Best Interest of the Child: How Divorce Courts Get it all Wrong and How the Constitution can Fix It.”

1.       The above quotes came from Cognitive Bias Modification and Cognitive Control Training in Addiction and Related Psychopathology: Mechanisms, Clinical Perspectives, and Ways Forward Clinical Psychological Science http://cpx.sagepub.com/content/early/2013/01/08/2167702612466547 The online version of this article can be found at: DOI: 10.1177/2167702612466547 published online 9 January 2013Clinical Psychological Science Reinout W. Wiers, Thomas E. Gladwin, Wilhelm Hofmann, Elske Salemink and K. Richard Ridderinkhof Mechanisms, Clinical Perspectives, and Ways Forward Cognitive Bias Modification and Cognitive Control Training in Addiction and Related Psychology