The Appointment of Minor’s Counsel Must Stop

Appointing minor’s counsel to represent the child in a family custody dispute is the single most destructive action the Court can take.

There are four primary problems with the appointment of minor’s counsel to represent the child:

1.) Appointing minor’s counsel introduces two prominent sources of bias into the legal proceedings that favor one side over the other;

2.) The appointment of minor’s counsel introduces, incites, colludes with, and supports pathological processes within the family to the detriment of the child;

3.) By introducing, inciting, and supporting the family’s psychopathology, the appointment of minor’s counsel undermines and can fully nullify therapeutic efforts to resolve family psychopathology;

4.) In failing to comprehend the complexity of developmental immaturity during childhood and adolescence, appointing a minor’s counsel offers an overly simplistic effort at a solution that will result in misguided advocacy by minor’s counsel for positions that are contrary to the child’s best interests and healthy development.

Bias

The Spectrum of Normal-Range Parenting

Normal-range parenting extends across a continuum from lax and permissive parenting to structured and firm parenting.

Lax and permissive parenting favors relationship development, while structured and firm parenting emphasizes the development of maturity. Both styles can be entirely normal range and healthy parenting approaches, and both parenting styles can lead to mature and healthy child development.

Parental preferences for one style over the other is a matter of parental values which are typically the product of parental experiences within their own families of origin. As such, parental preferences for differing parental styles are culture bound and culturally influenced.

Professional psychology typically favors a balanced approach of parenting styles that is more in the mid-range of parenting approaches, combining flexible negotiation with structured expectations for child behavior. For example, if parenting style were represented by a numerical continuum ranging from 1 to 100, with lower numbers indicating a more lax and permissive parenting style and higher numbers representing a more structured and firm parenting style, then normal-range parenting would extend from a range of 20 to 80 on this scale. The more extreme the parenting becomes the more problematic it becomes, but there is a wide latitude of normal-range parenting. Professional psychology tends to favor parenting in the mid-range represented by a combined parenting style, somewhere between 40 to 60 on the numerical range of parenting style.

Lax and Permissive Parenting: Parents who tend toward the lax and permissive style favor emotional and relationship qualities over maturational and behavioral qualities. Rules and expectations for children’s behavior are more flexibly negotiated, and lax and permissive parents may tend to avoid conflict in an effort to maintain interpersonal harmony within the family. As parenting moves toward the extremes of this style, parenting becomes increasingly over-indulgent and disengaged.

Firm and Structured Parenting: Parents who tend toward a more firm and structured parenting style favor maturation in child behavior, and these parents tend to adopt a more hierarchical family organization that emphasizes parental authority. Rules and expectations for child behavior are more clearly established and maintained, and parents adopting a structured and firm parental approach tend to be more comfortable with managing interpersonal conflicts. At extremes of this parenting style (80-100), parents can become dictatorial and overly inflexible, potentially prompting high levels of parent-child conflict or excessively submissive child behavior.

Within the normal-range of parenting approaches, both parenting styles are acceptable, both parenting styles can produce normal-range and healthy children, and both parenting styles have advantages and disadvantages, which is why professional psychology tends to favor a mid-range balanced approach to parenting that blends both parenting styles. Families can also blend parenting styles between the parents in a healthy and normal way, with one parent tending toward the more lax and permissive (emotionally nurturing) parenting style, while the other parent tends toward the more structured and firm (disciplinarian) parenting role. As long as the spousal unit remains cohesive, this blend of parenting styles can work effectively.

However, in fractured marital relationships differences in parenting style can become the source of inter-parental conflict. From the perspective of either parenting style, the other parenting style will appear problematic. For the lax and permissive parent, the more firm and structured parenting style of the other parent will appear too harsh and insensitive. From the perspective of the structured and firm parent, the lax and permissive style of the other parent will appear too indulgent and disengaged. Yet from the balanced perspective of professional psychology, the differing parenting styles of both parents are recognized as entirely normal-range and healthy, with the differences merely reflecting a matter of differing parental value systems.

Parents have the legitimate parental right to establish their value system with their children and in their families, so wide latitude should be granted to parental prerogatives in the exercise of parental style. As long as parenting avoids the extremes of either parenting approach (i.e., 0-20 the disengaged/neglectful parent; 80-100 the harsh/abusive parent) then due deference should be granted to the legitimate parental rights afforded to parents to establish family structure patterns consistent with their value systems.

Child Preferences

However, from the perspective of the developmental immaturity of children and adolescents, the lax and permissive parenting style will be favored over the structured and firm parenting style until full child-to-adult maturity is achieved, at which point, in retrospect the young adult develops a greater longitudinal appreciation for the benefits afforded by a firm and structured parenting style that led to the development of greater personal maturity. For example, the child may not like practicing the piano or doing homework for 90 minutes every night, yet by adulthood the once-child-now-adult may appreciate knowing how to play the piano and may be more successful in his or her academics and career because of the structured expectations provided by parents during childhood and adolescence.

But if we ask the child at the time, the developmental immaturity of the child would prefer to eat ice cream rather than vegetables, and the developmental immaturity of the adolescent would prefer to play video games or talk with friends rather than do homework and complete household chores. Yet the parental structure of insisting that the child eat healthy meals and insisting that the child complete responsibilities before indulging in play or leisure activities – even though these parentally directed activities are not preferred by the child, and even though parental insistence on these child behaviors can lead to increased parent-child conflict – can nevertheless promote the child’s healthy emotional and psychological maturation and development over more indulgent and permissive parenting.

Yet the developmental immaturity of the child and adolescent will nevertheless favor the lax and permissive parent.

So if minor’s counsel is appointed to represent the child’s or adolescent’s expressed preferences, an inherent bias is introduced into the Court proceedings in favor of whichever parent adopts a more lax and permissive parenting style. The more structured and firm parent is then placed in a problematic position through the inherent bias introduced by the Court of altering his or her parenting style and the legitimate expression of parental values within the family in favor of adopting a lax and permissive parenting style commensurate with the other parent in order to seek the child’s favor, since the child’s preferences and favor are being granted weight in the legal proceedings.

The influence of this Court-introduced bias in favor of one parenting style over the other then unbalances the family by requiring that both parents adopt an equally lax and permissive parenting style, which can undermine providing the child with the needed structure and discipline necessary for healthy maturation. However, if the more structured and firm parent continues to act in the best interests of the child by providing normal-range structure and discipline, then the inherent bias introduced by the Court in appointing a minor’s counsel to represent the expressed but developmentally immature preferences of the child will tend to produce unfavorable rulings against the structured and firm parent because of the weight given to the child’s expressed “preferences”.

The deliberate introduction of bias by the Court into legal proceedings is contrary to the principles of balance and fairness within the legal system, and the potentially detrimental impact that such Court-introduced bias has on family relationships, family functioning, and the long-range healthy emotional, social, and psychological development of the child or adolescent is contrary to the best interests of the child or adolescent. Courts should respect the legitimate parental rights and prerogatives of parents to establish within their families interaction patterns with their children that are consistent with parental value systems, and Courts should avoid taking actions that deliberately introduce preferential bias and that give preferential influence to one set of family values over another set of family values, particularly considering that these family values can be culturally embedded.

Second Source of Bias

The second source of inherent bias introduced by the appointment of minor’s counsel is in favor of pathological family processes over healthy family processes.

The appointment of minor’s counsel to represent the child fails to appreciate the complexity of family relationship dynamics, and two particular family relationship patterns are of particular concern relative to the appointment of minor’s counsel, 1) a role-reversal relationship in which the child is being used to gratify and meet the emotional and psychological needs and the psychopathology of the parent, and 2) the child’s triangulation into the spousal conflict through the formation of a cross-generational parent-child coalition of the child with one parent against the other parent.

Role-Reversal Relationship

There are a variety of types of role-reversal relationships. In some role-reversal relationships the child takes on a parental caregiving role for the parent (such as with an alcoholic, depressed, or incapacitated parent). Other types of role-reversal relationships involve the parent using the child as a “regulating object” (such as when the parent prevents the development of the child’s independent autonomy in order to ameliorate the parent’s own abandonment insecurities).

In role-reversal relationships the child is induced or seduced by the parent into taking care of the parent’s emotional and psychological needs, and a role-reversal relationship is considered highly pathological and highly destructive to the child’s healthy emotional and psychological development (for example, the prototype exemplar for a role-reversal relationship is incest, in which the child is used to meet the parent’s sexual/psychological needs).

The outward appearance of a role-reversal relationship, however, is of a bonded parent-child relationship in which the child expresses a high degree of affectional bonding toward the (pathological) needy parent. This pathological bonding motivation is typically at the expense of the child’s relationship with the other parent.

“By binding the child in an overly close and dependent relationship, the enmeshed parent creates a psychological unhealthy childrearing environment that interferes with the child’s development of an autonomous self… Enmeshment in one parent-child relationship is often counterbalanced by disengagement between the child and the other parent (Cowan & Cowan, 1990; Jacobvitz, Riggs, & Johnson, 1999).” (Kerig, 2005, p. 10)

Note that Kerig’s analysis of role-reversal relationships (also referred to as a “cross-generational boundary dissolution”) is published in the Journal of Emotional Abuse. Role-reversal relationships are considered to be highly pathological.

Also of note, is the commentary of Minuchin on the impact of enmeshed parent-child relationships on the cognitive functioning of the child,

“Members of enmeshed subsystems or families may be handicapped in that the heightened sense of belonging requires a major yielding of autonomy… In children particularly, cognitive-affective skills are thereby inhibited” (Minuchin, 1974, p. 55)

The appointment of a minor’s counsel to represent the child’s expressed “preferences” colludes with the psychopathology of a role-reversal relationship within the family and will introduce an inherent bias in the legal proceedings in favor of the pathological parent over the healthy and normal-range parent. The deliberate introduction by the Court of an inherent bias to the Court proceedings that favors the continued maintenance of family psychopathology is exceedingly ill-conceived.

Triangulation and Coalitions

It is both extraordinarily common and unhealthy for children to become triangulated into spousal conflicts. One of the common forms of children’s triangulation into spousal conflict is through the formation of a cross-generational parent-child coalition in which the child is drawn into an alliance with one parent against the other parent.

Salvador Minuchin, considered by many to be the preeminent family systems theorist, described the cross-generational parent-child coalition as a form of “rigid triangle”,

“The rigid triangle can also take the form of a stable coalition. One of the parents joins the child in a rigidly bounded cross-generational coalition against the other parent.” (Minuchin, 1974, p. 102)

Another preeminent family systems theorist, Jay Haley, defines the cross-generational coalition as a “perverse triangle”,

“The people responding to each other in the triangle are not peers, but one of them is of a different generation from the other two… In the process of their interaction together, the person of one generation forms a coalition with the person of the other generation against his peer. By ‘coalition’ is meant a process of joint action which is against the third person… The coalition between the two persons is denied. That is, there is certain behavior which indicates a coalition which, when it is queried, will be denied as a coalition… In essence, the perverse triangle is one in which the separation of generations is breached in a covert way. When this occurs as a repetitive pattern, the system will be pathological. (p. 37)

Note that it is definitional to the cross-generational coalition that the coalition is denied. The client child or adolescent of minor’s counsel will, by definition, deny the coalition that exists between the child and the allied and supposedly “favored” parent that is against the other parent. This means that in representing the child’s expressed preferences, minor’s counsel is actively colluding with the cross-generational coalition of the child and one parent against the other parent. This then, becomes an inherent source of Court-introduced bias in the legal proceedings.

Note also, that Haley identifies the cross-generational parent-child coalition as “pathological”. The minor’s counsel then is colluding with the family’s psychopathology against the interest of the healthier parent who is seeking resolution of the family’s pathology.

When minor’s counsel is appointed to represent the child who is in a pathological cross-generational coalition with one parent against the other parent, minor’s counsel is essentially being appointed to represent the maintenance of the psychopathology within the family. An inherent bias is thereby introduced into the Court proceedings in favor of maintaining the family’s psychopathology over the healthier elements of the family system that seek resolution of the family’s pathology.

Appointing minor’s counsel is essentially appointing legal representation for the family’s psychopathology. This is both insane and extraordinarily destructive.

If the Court insists on appointing legal counsel to represent the interests of the family’s psychopathology by supporting the child’s role-reversal relationship with the pathological parent and the child’s pathological cross-generational parent-child coalition with one parent against the other parent, and that will inherently introduce bias into the Court proceedings in favor of maintaining the family’s psychopathology over the healthier aspects of the family that seek resolution of the family’s pathology, then additional compensatory and balancing legal counsel should be appointed to represent the healthy aspects of the family that are seeking to resolve the family’s psychopathology.

Better still is for the Court to avoid deliberately introducing an inherent bias into the legal proceedings that favors maintaining the family’s psychopathology by completely avoiding introducing into the legal proceedings the inherent bias associated with the appointment of minor’s counsel to represent the interests of maintaining the family’s psychopathology.

Nullification of Therapy

By appointing minor’s counsel to collude with and support the maintenance of the family’s psychopathology, the actions of the Court will effectively undermine, and in some cases completely nullify therapeutic efforts to treat and eliminate the family’s pathological functioning.

First, as noted above, the appointment of minor’s counsel colludes with and entrenches the pathological processes within the family. Therapy must then OVERCOME the distorting influence of minor’s counsel that supports and colludes with the maintenance of the family’s psychopathology.

Second, the appointment of minor’s counsel destructively inverts the parent-child hierarchy by placing the child in an overly empowered and overly inflated position of judging parents. Salvador Minuchin discusses the importance of parental authority within the family,

“Parenting always requires the use of authority. Parents cannot carry out their executive functions unless they have the power to do so…. Children and parents, and sometimes therapists, frequently describe the ideal family as a democracy. But they mistakenly assume that a democratic society is leaderless, or that a family is a society of peers. Effective functioning requires that parents and children accept the fact that the differentiated use of authority is a necessary ingredient for the parental subsystem. This becomes a social training lab for the children, who need to know how to negotiate in situations of unequal power. (p. 58)

The appointment of minor’s counsel inappropriately and destructively elevates the child’s position in the family hierarchy, which serves to further entrench any pathological processes that exist within the family.

The elevation of the child puts the “non-favored” parent in a position of having to appease the child in order to curry the child’s favor. This is an extremely destructive family dynamic that undermines the therapeutic resolution of the family’s pathology. As long as this family dynamic exists, therapy will be ineffectual because the parent has been disempowered by the Court’s decision to appoint minor’s counsel and so lacks the necessary parental authority to “carry out their executive functions.”

Seeking and giving weight to the child’s preferences regarding his or her parents effectively acts to triangulate the child into the spousal conflict by asking the child, or allowing the child, to form alliances with one parent against the other, and choose one parent over the other. The child’s “preferences” are elevated into becoming a “prize to be won” within the spousal/parental relationship, with each parent competing to be the “winner” of the child’s “preference”. This is an extremely destructive relationship dynamic to introduce into the family, yet it is EXACTLY this destructive triangulation of the child into the spousal conflict as a “prize to be won” that the appointment of minor’s counsel to represent the child’s expressed preferences introduces into the family.

In my professional view, the appointment of minor’s counsel in a family conflict situation is so inherently destructive of the conditions necessary for effective treatment, that professional psychology should strongly consider whether the appointment of minor’s counsel to represent the child in a family conflict precludes and effectively prevents therapy.

Standard 10 of the Ethical Principles of Psychologists and Code of Conduct established by the American Psychological Association addresses the context and conduct of Therapy, and Standard 10.10a requires that “psychologists terminate therapy when it becomes reasonably clear that the client/patient… is not likely to benefit…”

The appointment of minor’s counsel acts to firmly entrench the family’s psychopathology and actively colludes with the family’s psychopathology, and appointment of minor’s counsel both introduces and sustains distorted family relationship dynamics that are likely to prevent and preclude therapy from resolving the family’s pathology, so that under Standard 10.10a of the ethics code for the American Psychological Association psychologists should terminate treatment because the child and family are “not likely to benefit” from therapy in that context.

Developmental Immaturity

The appointment of minor’s counsel grossly misunderstands the nature of child and adolescent immaturity and development. Focusing only on adolescents, brain neurodevelopment is still incomplete during adolescence. While some proto-adult capacities are active and available, other important socio-emotional and judgment capacities remain incompletely developed, so that the judgment of adolescents remains significantly impaired.

If an adolescent is to make an informed “independent” decision (the construct of “independent” is questionable from a socio-neurological perspective, see for example Cozolino, 2006) then the adolescent should be afforded all of the relevant information necessary to make an informed decision. In the context of divorce and the dissolution of the intact family structure, the relevant information can include the reasons for the divorce from each parent’s perspective, since in the absence of balanced information one parent may provide the child with inaccurate and unbalanced information that potentially blames the other parent, thereby inciting and inflaming the child’s anger and hostility toward the other parent.

Simply asking the child if one parent influenced the child is insufficient to guarantee that the child has balanced and accurate information on which to base a decision, since a number of family processes can subtly provide the child with distorted information and interpretations, but the processes by which the child acquired this information may remain below the level of the child’s conscious awareness. So if we are to seek the child’s preferences, then we should guarantee that the child has accurate and balanced information from both sides regarding the family dysfunctions and family relationship dynamics so that the child can make an informed “independent” decision regarding his or her desires and best interests.

So then, let’s have each parent in turn sit before the child and recount the reasons for the divorce and family’s dissolution and describe for the child the failures of the other parent as a spouse and parent, with each parent presenting to the child the reasons the child should choose a particular option. In this way, the child will have balanced and (reasonably) accurate information regarding the family situation from which the child can then make an informed decision about his or her best interests and preferences regarding family relationships.

But is this actually what we want to do? Absolutely NOT.

But in the absence of establishing such a procedure to ensure that the child has accurate and complete information on which to base his or her decisions, then we are vulnerable to advocating for child decisions that are based on the child’s incomplete understanding of the situation and its consequences.

It is best to avoid this whole quagmire by not seeking the child’s supposedly “independent” preferences, and by instead making decisions among adults as to the best interests of the child.

Furthermore, the adolescent brain lacks important executive function abilities that would allow it to make fully reasoned decisions. There is a tendency for the adolescent brain to make impulsive decisions based on indulgent gratification of present-moment desires, and it lacks the capacity for longer-term perspective taking that fully considers future consequences of present decisions.

This is an inherent, neuro-developmentally based limitation on the adolescent brain.

So while it may appear that the adolescent brain has some mature decisional capacities, these capacities are biased in favor of momentary gratification and self-indulgence that inherently favors the lax and permissive parenting style over the structured and firm parenting style, even though the structured and firm parenting style may be in the adolescent’s longer-term best interests.

The immature development of the adolescent’s frontal lobe executive function capacity would recommend that in making decisions the adolescent should be provided with the scaffolding support of a fully mature nervous system of an adult. This raises the question of which adult should provide the scaffolding support (i.e., directive influence) for the adolescent’s still immaturely developed frontal lobe executive function capacity. In normal-range families, this scaffolding support is provided by the adolescent’s parents until the age of 18, at which time this scaffolding support is withdrawn and the late-adolescent is allowed to enter into contracts and make decisions independently of parental permission.

If the Court is to advance the adolescent’s decision making influence into the period of earlier neuro-developmental immaturity and instability by appointing legal counsel to represent the younger-adolescent, then it becomes incumbent upon minor’s counsel to possess a professional level of understanding for the exact nature of the compromises inherent to the cognitive functioning and judgments of the adolescent client. Unless we compensate for the yet uncompleted developmental immaturity of the adolescent brain we will be inadvertently providing support to the compromised decision making by the client that can lead to long-term negative consequences for the adolescent client because of poor decision making which received our misguided and developmentally ignorant support.

Conclusion

Except under extraordinary circumstances, minor’s counsel should NEVER be appointed by the Court to represent the child or adolescent in family conflicts.

The role of representing the child’s (or adolescent’s) interests should be shifted into the domain of professional psychology. If the Court wishes to achieve representation for the child’s interests in the legal proceeding, or for those of an adolescent, then the Court should appoint a family therapist to act as the child’s or adolescent’s representative (the voice of the child) to the Court. This would allow the Court to receive balanced and professionally informed input from the perspective of the child or adolescent while avoiding collusion with the family’s pathology that would undermine the ability of therapy to treat and alleviate the family’s psychopathology.

If the Court insists on appointing minor’s counsel, then standards of practice should be developed to direct and guide the interface of minor’s counsel with the surrounding mental health needs of the family and client. Additional guidelines would be needed to address the inherent biases to the legal proceedings in favor of one party over the other that are introduced as a consequence of appointing minor’s counsel.

Craig Childress, Psy.D.
Clinical Psychologist, PSY 18857

 References

Cozolino, L. (2006): The Neuroscience of Human Relationships: Attachment and the Developing Social Brain. WW Norton & Company, New York.

Haley, J. (1977). Toward a theory of pathological systems. In P. Watzlawick & J. Weakland (Eds.), The interactional view (pp. 31-48). New York: Norton.

Kerig, P.K. (2005). Revisiting the construct of boundary dissolution: A multidimensional perspective. Journal of Emotional Abuse, 5, 5-42.

Minuchin, S. (1974). Families and Family Therapy. Harvard University Press.