In which, a psychologist encourages us to move from “custody” to “parenting plans,” “reunification counseling” to “family counseling,” “move-aways” to “relocation,” and rants about a new pet peeve.
Connotations. Words have connotations, meanings that are associated with the word but are not the central meaning. We are familiar with how language is used to shape perceptions in politics. Frank Luntz, a public opinion guru, specializes in finding words to use in political contexts that can influence public opinion. He promoted the use of the phrase “death tax” instead of “estate tax” (who wouldn’t oppose a tax on death?). Instead of “global warming,” he promoted the phrase “climate change” as a more neutral phrase (which down-plays scientific evidence of the earth’s atmosphere heating up).
In family law, there are many words and phrases that have subtle connotations that, in my opinion, are misleading and, in some cases, lead to actions or interpretations that are counterproductive to the well-being of the children and families we serve.
Parenting Plans. Let’s start with the most commonly used word in our field ‐ custody. The use of this word in family law has been debated extensively for decades, especially with the rise of mediation and other consensual dispute resolution processes. It’s use in family law hearkens back to the old days in Europe in the 19th century and earlier when men owned property, which included wives and children. If families broke up, the owner got their property, including the children.
This conceptualization of the ownership of children has continued to the present day leading to the “custody” of children being argued over in a civil court to see which parent “owns” the children. But children are not “owned”: they usually have a connection with both parents and their extended families that cannot be “divided up” fairly, which is one function of the civil courts.
The corollary of “custody” is “visitation” (or in various other countries, “access”). The word “visitation” implies a minor role for a parent. Both words create impediments to parents talking about a realistic plan in which the child can have a strong relationship with both parents, and in which decisions can be made promptly and fairly.
The United Nations Convention on the Rights of the Child was a landmark international agreement that was ratified in 1990. This was signed and ratified by every member of the UN (with the embarrassing exception of the United States that has signed but not ratified it). Following its ratification, the terms “parenting responsibilities”, “residence” and “contact” have been adopted by a number of countries. These terms flip the normal hierarchy of power: before, parents had “custody” or “access”;now, children “reside” somewhere and have “contact” with a parent. This use of language moves the focus towards the rights of the child rather than the rights of the parents.
Thus, for example, in Britain now, there is no such thing as “custody” of children in the law. Instead, there is the concept
of “parental responsibility.” In 2014, the Children and Families Act introduced the concept of “child arrangement orders.” In the U.S., there has been increasing use of the phrase “parenting plan” to emphasize that this is not a tug-of-war. This is much better language that tends to move parents to consider how they can collaborate over their joint rights and responsibilities to their child instead of framing the issue as a contest. Without changing any legal nomenclature, we can still pose the question to parents, “What is your parenting plan?”
So, is this debate over? No, to this day, the language of “custody” remains in the California Family Code and in popular culture perpetuating problems. Often, separating parents still enter the process asking for “sole custody” with “visitation” to the other parent or maybe they ask for “50/50.” This means that the conflict-resolvers start with an uphill battle to move the parents away from positions of principle to the consideration of interests (Fisher, Ury & Patton, 2011). We still have to ask, “What is your parenting plan?”
Reframing. In the field of family therapy, a crucial ingredient is finding a way to change how a family sees a problem, known as “reframing.” Reframing is the process of creating a different way of looking at a family problem so that the family sees things in a new light, which changes the situation’s whole meaning (Watzlawick, Weakland & Fisch, 1974; Minuchin, 1974).
A famous example of reframing comes from Mark Twain’s, Tom Sawyer’s Adventures. In one story, Tom is made to whitewash thirty yards of fence instead of going swimming with his friends. When they walk by and make fun of him having to work, Tom says that it is not necessarily work and that he rather likes it: “Does a boy get a chance to whitewash a fence every day?” Soon, all of his friends want the opportunity to paint.
As an example from a mediation context, a mother may complain about the father always being late for pick ups or canceling at the last minute. One reframe would be to say that the mother wants the father to be involved in a way that is consistent and predictable. The impact of such a reframe is designed to move the experience for both the mother and the father to one in which the mother wants the father to have a relationship with the child, and also wants to create a workable solution involving consistency and predictability.
In mediation and psychotherapy, we strive to help people make changes in behavior as well as changes in the way they think. Similarly, courts and attorneys can assist parents make changes by writing orders with language that emphasizes common goals.
Family Counseling. Let’s consider the unintended effects of an order for reunification counseling. This word is used frequently in family court and is often requested by attorneys, and ordered by family law judges, when a child is reluctant to visit a parent and/or when there are signs of alienation in the child. The phrase originates from child welfare to refer to a situation in which a parent has had very limited contact with a child, such as in cases of the parent having been in prison.
The order is often made that the rejected parent and child should be in reunification counseling together. At first glance, this is an obvious and simple solution. But, unfortunately, in my experience, that solution will usually fail if it doesn’t involve the other parent. Further, the framing of the issue as a problem between two people from the get-go, is likely to engender resistance in the child, especially if that child is an adolescent. Instead, in my opinion, the order should be for family counseling giving the mental health professional the discretion to involve both parents and have sessions with dad and child, mom and child, and mom and dad, as needed. The issue is a systems problem and the solution requires change and accommodation in all parts of the family system. The order for family counseling reframes the problem and has the potential to lead to change instead of resistance.
Take the example of a child who is showing rejecting behavior and attitudes and is reluctant to visit a parent. Further, let us assume that the rejected parent is harsh and authoritarian and that the loved parent is understandably protective. In this case, therapy will need to focus on improving the rejected parent’s parenting skills, while simultaneously re-assuring the loved parent that changes have been made and the child will be safe.
Or consider the complementary example in which the rejected parent is a benign parent and the conflict in the child is being driven by the alienating behavior of the loved parent. In this scenario, the therapist will have to move carefully to provide positive interactional experiences between the child and the rejected parent, while simultaneously interrupting negative communication between the child and the loved parent.
In either scenario, both parents need to be involved if the treatment is to be successful. Thus, the order needs to be that all family members will be involved in family counseling at the discretion of the family therapist.
Relocations. Another word that has crept into our language is “move-away.” This refers to a case in which one parent is requesting a move to another location and taking the child with him or her. This is a local slang usage, mainly used in California, the law refers to “relocation.”
The problem is that the word move-away has a negative connotation, implying that to move is bad. Now, I am not naïve, I know, as a custody evaluator, that there is a body of research suggesting that geographical relocation is a stressor to families and children, and that the loss of a parent has a negative impact. But, there may also be good reasons for relocation, such as the economic and psychological benefit to the parent who moves (as has been fully explored in such California cases as Burgess and La Musga). In my opinion, we should be using the word relocation which does not have the negative connotations of the phrase move‐away.
Updating Custody Evaluation Reports. Finally, to my new pet peeve (at least when I am in the role of a custody evaluator) – the notion of a stale custody evaluation report. This is the idea that the data and analysis in a custody evaluation report are no longer useful or relevant because time has gone by (often because of foot-dragging by one parent or his or her counsel who do not like the conclusions of a report).
And what a magnificently damning word: stale! Used with bread, it conjures up images of a nasty taste in the mouth, the smell and sight of mold, and the potential for an unpredictable and unpleasant gastro-intestinal event.
But a report does not go off. It has valuable information from a neutral source – the court’s expert – it was valid on the date it was written and still is valid to that point. Often, nothing much has changed in the family since then. If it has, evidence can be introduced to add to the report. The report will still have useful information and analysis for the court to use. Of course, if there has been a really significant delay, or if there is important new data to consider, the court can always consider asking their expert for a brief update. But, it does not mean that the report is now useless and that all that effort and money was wasted.
The words we use matter. Let’s be circumspect and choose wisely.
Fisher, R., Ury, W. L. & Patton, B. (2011). Getting to Yes. New York: Penguin.
Luntz, F. (2007). Words that work: It’s not what you say; it’s what people hear. New York: Hyperion.
Minuchin, S. (1974). Families and Family Therapy. Cambridge: Harvard University Press.
Watzlawick, P., Weakland, J. & Fisch, R. (1974). Change. New York: Norton.
Angus Strachan, Ph.D., is a clinical psychologist in Santa Monica with Lund & Strachan, Inc., and an assistant clinical professor of psychiatry at UCLA, where he teaches family therapy and does research on the impact of family treatment on major mental disorders in children and adults. He is known for his work as a mediator, family therapist, custody evaluator and parenting plan coordinator.
He can be reached at: firstname.lastname@example.org.