Carol Smaldino: Facts Without Feelings in Family Court

There is a little girl in my practice, and she is one of the patients with whom I have remained involved while vacationing in Italy. It has been an emergency because the case and the child have been dangerously trapped in Family Court in the State of New York. The word “dangerously” applies here because the child is at risk since no one in authority — who has the respect of the judge — is protecting her interests.

More importantly, the child (age 6) is being considered “manipulative” and as having “too much power” in visitation decisions. Even her panic-filled pleas have been framed as coming not from her but from her mother. It has been decided by all of the court-associated adults around her that, when it comes to her best interests, she is to have no say, at least for now.

Briefly, the child doesn’t want to have overnight visits with her father, whom she fears and mistrusts. The mother, who has sole custody, has been blamed for any and all of the tensions between the daughter and her father. When the child was four years old, the father decided to utilize the court assigned visitation for the biweekly overnights. One day he called saying that he would pick her up the following day, and her mother said it was too short notice for her daughter and for her. Without further discussion, he called the police to say there was a violation of a legal order.

With that phone call he got squad cars with sirens to go to the mother’s home. A policeman told the girl she had to go with him to her daddy’s house. After hysteria and trembling on the child’s part the police said no, they would not be party to what seemed to be a violation of a small child.

That was two years ago, and, according to most of the adults involved in the court case, it shouldn’t matter now. The judge in this case is impatient because the child isn’t one of the poor, physically abused victims that routinely come into his court. By comparison, this child’s complaints seem mild. He doesn’t see any reason why the child should be afraid enough of her father to warrant allowing her to have a voice in matters that are allegedly her own best interests. The law guardian and the court-assigned psychotherapeutic personnel have decided that this child’s perceptions of her father and her version of the facts are not to be taken at her word. All parents annoy children, why then should this child’s fear be seen as real?

Of course not, a child couldn’t possibly have thought that her father is “tricky” all on her own; who taught her that, was it her mother?

Right here we have the question of how feelings are evaluated and when they become facts according to a judge in the case and according to the other professionals assigned by the Court. Who decides when the child’s feelings and opinions — her experiences — are to be diagnosed away, blamed on her mother or in this case, on me, the child’s independent therapist, versus when they count as valid? In fact, when if ever, do a child’s feelings become the main facts of a case that is deciding the events of his or her life?

In exquisite juxtaposition to the argument for taking this child seriously are some of the recent statements of Judge Sonia Sotomayor made under pressured questioning by the U.S. Senate panel. She was repeatedly asked if the feelings she expressed in several public speeches reflected her application of the law as a jurist. Consider this particular response of Judge Sotomayor on empathy: “We apply law to facts. We don’t apply feelings to facts.”

Interestingly, in ascertaining the best interests of a child, empathy for his or her feelings is very much a part of any investigation. And besides, what happens when all of the testimony in such a case involves the highly subjective views and prejudices of clinical and legal professionals — who always bring their own biases — to what constitutes the “best interests of a child?” What happens when people claiming to use fact-based evidence are really utilizing their own prejudices as tools of alleged “evaluations?”

Here is a girl who was filled with fear and trembling, who didn’t speak except to look at adults anxiously for a long time before making a meek reply of accommodation. After much therapy, now she speaks her mind, and speaks up when the adults around her are lying — which they are and have been doing. Without validation and efficacy in her world, she could crumble, retreating back into chronic mistrust.

Who then is to say what are the facts? How can one consider facts when the authorities who believe their own stories of self-importance call the fact-givers crazy? Prejudice can be cloaked in a mask of certainty that demeans anyone who brings a different way of seeing things to the table. If you demean a child or a group with your perceptions of how they should see and feel and function, then you make them feel inadequate if they diverge from that norm, and you prejudice their own positions.

Consider for a moment, New York Times columnist Maureen Dowd’s mixture of emphasis and empathy as she dissected Judge Sotomayor’s cool detachment from any emotional involvement in her own cases. During her testimony, Judge Sotomayor distanced herself from the very empathy that perhaps made her candidacy to the Supreme Court of the United States so appealing to President Obama. In Dowd’s column of July 14, 2009, “White Man’s Last Stand,” she underscores our collective (and often white male) tendency to renounce the “irrationality” of empathy. Dowd concluded that Sotomayor may have had little choice other than to hide her own empathic capacity so as to pass for the calculated and unflappable candidate required to survive the Senate examination.

Sadly, we so often miss the point that emotions are inevitable and can inform decisions if they are noted and weighed. Those who refuse to acknowledge an emotional involvement are hiding and, sadly, they have impressed us so much that we tend to believe in appearance as opposed to substance. In the case of the little girl in my practice, for example, the father uses this to his advantage. He leverages his capacity to use his charm and cool manner to win over the minds of those who think they are immune to such manipulation.

So, coming back to this little girl about whom I shamelessly care, what would you do if you were me? What would you say to this child when she asks how come it’s so hard for some grownups to believe a child is telling the truth? How would you comfort her, and where would you take your caring?

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