The Children of Israel 17: Day of Judgment for kids: Divorce

Dr. Gerald Caplan was one of the most influential child psychiatrists of the twentieth century. He established a child clinic in Jerusalem that was far ahead of its time in the early 1950’s. One of its consultants was Erik Erikson, one of its trainees Salvador Minuchin. Like many exceptional professionals of that “Tsena” [austerity] period, he moved on to Boston, where he nearly single-handedly created the fields of Medical Liaison and Community Psychiatry.

When I was in training, in the days when the word “community” was regarded positively, Caplan was an icon. Caplan retired from Harvard and tried to complete the work he had started by becoming Professor of Child Psychiatry at Hadassa Medical Center in Jerusalem. He recounted to me how he was greeted. The tenure committee of the Hebrew University, unimpressed by his international renown and his Harvard professorship, insisted that he supply a full accounting of his publications. Accounting. Caplan by then had published around twenty volumes and more ground-breaking papers than just about anyone in his field, but the tenure committee needed to count them, -according to the accounting of the Physics professor who chaired the committee. The number barely secured him the post. When I moved to Israel, he offered me a job at Hadassa. I thought trying to create community child psychiatry in the South would suite me better. Caplan said to a colleague, “If Flashman chooses to go to the South, it proves he is an idiot and we are better off without him.” Turns out he was right; the rest can be found in my Losing It.

In the early nineties, after retiring from Hadassa, Caplan set up a center to treat divorcing families. He invited me to set up a branch in the South, an invitation that never bore fruit. What I want to relate here is Caplan’s “community-oriented” insight. He said, “Divorce is the number one child mental health challenge of our day now in Israel.” Right again. It remains a challenge yet to be met. The child mental health aspect of divorce is pretty simple to define. Children naturally misunderstand divorce as being about them and perhaps because of them. Children require the assistance of both parents to maintain a sense of security in their relationships with both parents, that parents have ceased to love each other but neither parent will divorce their children. The more divorcing parents express their wish that their child continue to love both parents, the less the divorce creates loyalty conflict. The more parents fight over custody and visitation, the more children suffer from loyalty conflict. The courts of course were not flooded by divorcing parents. Rather, the “high-conflict” divorces tended to reach an impasse with extended litigation and continuing emotional stress on the children.

Here are the ways in which Israel has so far failed to meet this challenge:

1. The Family Court

The Family Court was created in 1998 partially in order to keep divorce litigation from flooding the general Magistrates Courts (the British name, in Hebrew: Beit Mishpat LeShalom). In principle The Family Court justices were to specialize in family law and become adept in handling divorce cases. At the time there was hope that such expertise would decrease the never-ending litigation of the impassed high-conflict cases. One would have assumed that child mental health considerations would come first, as prevention of loyalty conflict was the foremost goal in creating these courts.

But sadly the child of divorce became invisible even in the Family Courts. Justices were interested in all sorts of legal issues, but not in “psychology.” Their training never included any in depth understanding of divorce from the child’s point of view. So each justice simply took their own home-grown prejudices about children and used it to wield unlimited power over the lives of children. The State of Israel, for all sorts of reasons unrelated to the child’s best interests, never allowed the child any legal representation as a full participant in divorce proceedings. The refusal to allow a guardian ad litem has been criticized repeatedly but has not really budged. As a result, there is no party that represents  the child’s view.

As a result Family Court justices would fly by the seat of their pants, trying recreate the wheel in each case. They would arbitrarily invite or not invite the child to appear in chambers, according to the inclination of the judge without any criteria. Small wonder that in 2005 when the Justice Ministry discovered that the principle of participation of the U.N. Convention on the Rights of Children (see Blog 1) provided the child the right to initiate being heard personally, the Family Court justices felt a need to undergo training in communication with children. I was invited to take part in the pilot of this training. My impression was negative. The “in-service” was mostly frontal and did not provide enough time (for busy judges, after all, for whom this was “psychology” and not their “field”) to accomplish more than a superficial exposure to the child’s world. Pre-school children, who constitute the bulk of children of divorce, were entirely almost completely ignored (too much “psychology”). In the end, the justices heard a talk about how they really already know how to talk to children, using the worn-out and nearly meaningless Israeli military cliché “just talk to them at eye-level.” The die was cast. Justices are experts because they are justices. The differences between children and adults were washed over by good intentions and the training was declared a success because the judges were blissfully unchallenged. And the child qua child was left invisible.

2. The Rabbinical Court

To protect the Jewish population from unnecessarily breeding bastards according to Jewish Law, the State of Israel maintains a parallel rabbinical court system which has sole authority to issue the final divorce decree, the get. This provision would seem to be solely in the interest of yet to be born children. Without it, a woman might think she is free and bear a child to a man other than her husband while by Jewish law she is still married. The offspring would bear the stigma of mamzer whose civil status is stigmatized. Perhaps the woman does not care or even know about this, but the requirement of a get protects the status of potential children.

The Rabbinical Court also functions as a parallel to the Family Courts and property and custody can be litigated there as well, depending which side turns to which court system first. What!? That’s right, as if divorce were not complicated enough in and of itself, separating Israeli couples also have to second-guess the other side in  terms of who gets (pun intended) to which court first. The overall understanding of secular couples is that the rabbis (these are exclusively male) are biased in favor of the male, but it really depends on which rabbis hear the case. In the 1990’s two “improvements” were made in the rabbinical court proceedings. The first was that women were allowed to represent parties to divorce, under the new title “rabbinical advocates (toaniyot rabaniyot).” Second, several rabbinical courts hired social workers whose mission it was to inform the court, try to “save” marriages, mediate and counsel regarding children. The motivation of the rabbinical courts at the time was to prevent the creation of the Family Courts, and once this failed, the social service program was kept standing but never maintained or expanded, even to one worker in each court. The social service component became expert mainly in divorce dynamics and mediation, never in child metal health. That would be more “psychology” than the rabbis could manage. This program, stunted after its inception, was effective mainly informally, for better or for worse. Its effect depended upon the relationship of the individual worker with the  individual rabbinical judges.

3. Social Services: In the Courts

A social service “Assistance Agency” was created together with the Family Court. The agency attempted to perform evaluations and make recommendations and some treatment for families referred by perplexed judges. For many years the agency provided a limited but professionally highly valued service for some divorcing couples. This was as close as Israel came to paying some attention to the experience of children. In recent year this agency merged with the smaller informal program at the rabbinical courts and a plan was developed to expand manpower in a uniform manner to all rabbinical courts. Just a few months ago the new and completely uninformed Justice Minister shuffled the deck with a fiat in which all the social services of both courts will be reduced to a superficial introductory “psychoeducation” (in reality bureaucratic) role that is likely to accomplish nothing positive but eliminate the possibility of any “psychological” understanding of the child’s experience of the divorce.

4. Social Services : Outside the courts

Israeli bureaucratic ingenuity is famous for producing the duplication of nothing. In the case of divorce, the Welfare Ministry created a copy of American “Welfare Officers for Court [i.e. Divorce] Proceedings” [pekidei saad to sidrei din] whose original mission was to double check that divorce agreements not sacriofice the welfare of the child to the convenience of the parents. For example, parents were not permitted to burden children with excessive travel or excessive fragmentation of the fabric of their lives. But since the Magistrates Court, prior to the creation of the Family Courts, had no one to advise them on divorce disagreements and litigation, this role was foisted upon the welfare officers who were never fully trained and certainly never funded and staffed for it. The inevitable result of this artificial mess was that overloaded and undertrained social workers were rewarded for efficiency in making the cases move along, which required superficial one-sided work. Social workers were only superficially trained in talking with children [take my word for it, I did the training but had no say in how much training would be necessary to be effective] and with child developmental needs. A worker would often be pressured to produce a “Report” [taskir] with time to see, say five children once all together for an hour. The ability to apply judgment to direct experience was not supported, and in its place some superficial guideline that might sound professional and save time and effort was sought.

Dr. Richard Gardner, a later to be criticized to the point of being discredited New York child psychiatrist provided just the formula. He made up a “syndrome” of parental alienation, which was imported in the most simplistic, i.e. bureaucratically efficient, manner. The idea as applied in Israel was that if a child does not want to visit a father (most of the cases), blame the mother for “alienating the child” as a default. This saves the very complex professional role of evaluating estranged relationships for which society provided no resources. As a result, the child becomes virtually invisible and mute. Anything he might say about Dad is blamed on Mom. Any clever Israeli lawyer, and these abound, could instruct his male client to make the visits miserable and then blame the mother for alienating and insist that the child be taken from her custody either to his or to a residential placement, by the way sparing alimony payments.

The last piece of this puzzle from Kafka was the simplistic mis-importation of the research on children of divorce. The first and greatest student of this field was Dr. Judith Wallerstein, who would visit Israel at times. Judy had made a forceful argument that children benefit from a continuous relationship with the noncustodial parent, usually the father as long as it is a positive relationship. Well, the first part fits the need for a simple solution, but the second part would require allocation of staff and training to evaluate the quality of such a relationship, so it fell into the Atlantic (or maybe Mediterranean) Ocean on the way to Israel. Complexity just gets in the way of “efficiency.” I had the privilege once of accompanying Judy Wallerstein during a conference co-sponsored by the Ministry of Welfare and the Social Work Department of the Hebrew University, where I had been teaching about families. As is Israeli pseudo-academic sport, a “difficult” (read: impossibly muddled) divorce case was presented. The “dilemma was how to maintain paternal visitations when the child was adamant that Dad was emotionally cruel to him. Judy asked why on earth was anyone trying to preserve such visits. She was told that that is what the “research” says – parental continuity is always good for the child. Judy asked, “which research?” and was flabbergasted to hear the reply, “yours.” She rose to the occasion of trying to explain the way her research discriminates between positive and destructive relationships. She was flatly told (in a somewhat muddled translation) that she was wrong, that is not what her research said. During a break, I told her what was really said in Hebrew, which she found hard to believe. As the session reconvened she addressed the question again and this time received in both original and translation a clear lesson in how her research had been totally misconstrued in Israel. It reminded me of what my good friend (and Judy’s), Al Solnit of Yale had once confided in a conversation about such matters, “I have been giving advice to Israel for 20 years and no one has listened to a word of it.”

The ultimate result of this mess was an ideological unwillingness of this service to confront simple human experience. Workers were rewarded regularly for being quick (“professional”) and any worker who stopped to apply professional judgment to professional experience was punished. At the far extreme, the defaults I described above created the absurd but very current idea in the courts that if a divorced father threatened to discontinue visitations unless x y or z, then he must be placated at all costs according to Wallertein’s research. I once gave a lecture about “The Good-enough Divorced Father” where I suggested that such threats hardly speak for a good relationship since the child receives such threats as an insult to his relationship with Dad. I was told by the service’s director (a former student) that I was way out of line and could not say such a thing. A little later, training the welfare officers about children, I raised some questions about Gardner’s “parental alienation.” A student complained that I was spreading heresy and I was promptly fired.

5. Family Evaluation Reports to the Courts

The reader should by now have a pretty clear picture of the impossibility of the task of the Family Court judge. In “high-conflict” divorces, he is flooded with allegations that cannot be proven and extreme claims about how each parent is harmful to the children. Often each parent comes armed with some expert opinion supporting his or her claim. The “Assitance Unit” has now become hamstrung and the welfare officers are chronically understaffed and undertrained. So the judge naturally decides to appoint  a neutral expert to render an opinion. The bottom line that the judge needs to understand is not whether the entire procedure is good or bad for the kids, because that is a no-brainer. It is awful. What the  judge needs to know is what Solnit and partners called “the least detrimental alternative.” This would come mainly out of a deep understanding of the emotional world of each child.

Nope, not in Israel. The appointment of the expert has rapidly turned into its own little industry, with experts providing intensive and costly evaluations that are universally recognized as irrelevant to what the court needs to know. There “expert” clinics perform a great deal of psychological testing and individual examinations. The reader might be puzzled – how can individual testing give an accurate picture of a relationship? Well, it can’t, but one has to make a living. So the court orders parents to fund outrageously expensive and often irrelevant projective testing, while a real understanding of the child’s relationships is given short shrift. Some of these clinics seem to pander to what the judge wants to hear, probably in order to get reappointed. The clinics seem to think judges like a “balanced” report, which usually includes painting a grim picture of each parent’s mental health, and then suggesting some kind of compromise without detailing the child’s views and relationships. The judge almost always adopts the recommendations of his expert, so matters are decided for the child without an adequate assessment of the divorce from the child’s point of view.

6. Divorce Mediation

AT this time most Western countries favor mediation over litigation and make it to the advantage of the divorcing couple to mediate. In the 1990’s there was some activity towards creating professional mediation workers, but something went amiss and mediation seems to have faded as a realistically dominant direction. I suspect that the lawyers’ association was active in keeping mediation limited. The poorly  thought out plan implemented by the Justice Minister suggests both sides – that mediation is lacking and has to be encouraged and that the recent plan will make noise but to effective change.

There are two relevant points about mediation that are related to the place of the needs of the child in mediation. The first point is that in “low-conflict” divorces the actual difference between mediation and litigation is not so significant. These are the couple capable of reaching agreement and these are not the cases that clog the court calendar and drive judges to distraction. I was privileged to supervise [off the record due to arcane academic rules – a full-time faculty member “pretended “to supervise a first doctorate about mediation in Israel and perhaps in the world. Dr. Raya Yoeli, a mediator,) I can find no link even in Hebrew) wanted to study the different activities that use the same title, mediation. She found that in families with a higher level of differentiation am activity closer to a therapy was possible and included making place for understanding the children. However, in lower level differentiation families (pretty much the high-conflict group) other skills were necessary and often a lower level of compromise with less attention to the children. Dr. Yoeli discussed “differentiation” in the way she learned it from me. Families with high differentiation are able to achieve communication between dyads in the family in which both parties enter communication from an authentic personal stance (“I-position) and with openness to the I-position of the other, they communicate between the two and do not enlist “triangles” of other family members into the specific communication, and they achieve “co-creation” in which the parties are partners to something new in each of them. (Here is my one paper in English about this). Now the simple fact is that mediators learn how to deal with the high-differentiation families which need them less, and then try to apply such skills to low-differentiation families where other skills are needed.

The second point is that the course in mediation overseen by the Justice Ministry includes an unspeakably weak section regarding children. Mediators are simply unprepared and unequipped to speak with children or to understand them developmentally. Once in 2005 I gave an intensive course on children and divorce. I was informed that there had never been such a course anywhere in Israel.(I cannot attest to this). One mediation course asked me to give the course to their staff and then they decided to offer it as a supplement to already graduated mediators. Absolutely no one sighed up and the entire matter of getting mediators to understand children died. So the child is erased in mediation as in litigation.

7. Public Child Mental Health Services: Child Treatment

Readers of this blog will already know that now in Israel there are practically no child  mental health service available, and those that are available are completely medicalized. So Dr. Gerald Caplan’s insight into the need for preventive and supportive treatment for child of divorce remains unredeemed for most of the population.

8. Public Mental Health Services: Family Therapy

One last quick point to complete this map of the dismal state of affairs. One might expect that Family Therapy would be a useful tool in many divorcing families. Family Therapy saw some exciting good years in the 1980’s and 1990’s but is now mostly history. What does exist has mostly diminished into “Parental Guidance” and most family therapists are untrained in communication with children. So children are “understood” and “treated” indirectly, another form of being “erased.” The Family Therapy Association invited me to address the disappearance of children from the Family Therapy treatment room just a few years ago. Of course, nothing came of it as far as I know.